Yeah, it makes sense that sometimes it's just easier to state the exceptions than all the allowed cases. And apparently the Latin origin of the phrase, "exceptio probat regulam in casibus non exceptis," is something like "the exception demonstrates the rule for non-excepted cases", so I don't really have an etymological leg to stand on. I just like my understanding of the phrase so if we are going to move away from the original meaning, I'm trying to steer people towards my preference rather than the nonsensical "the counter-example that invalidates my supposed rule actually proves that my rule is correct!"
Edit: After discussion with AI, I have decided that I need to be charitable and allow that the common, modern usage also is sensible, under this interpretation: "the exception proves the rule" --> "the distinctiveness and memorability of an exception highlight the regularity or norm of other cases"
In cognitive psychology, there's a concept known as the "von Restorff effect" or "isolation effect," which states that an item that "stands out like a sore thumb" is more likely to be remembered than other items. Applying this to the phrase, an exception is memorable precisely because it deviates from the norm. Its uniqueness and the mental emphasis we place on it implicitly reinforce the understanding that it is an outlier, while the standard or usual cases don't stand out in memory because they conform to the expected pattern.
Haven't heard this one before. Excellent.
Announcer: Surely one death by drowning is one too many?
Mitchell: That's a ridiculous thing to say.
"Everyone has to die, and in a balanced, fair, and democratic society, some of them should drown."
Ilya Somin addresses the gravity of civil liabilities compared to criminal penalties. He suggests that sometimes, a short prison term might be preferable to substantial civil damages. And he is approaching a really good point when he writes:
There are situations where the consequences of civil liability are so grave that the civil-criminal distinction may seem artificial, as when defendants end up paying enormous damages that force them into bankruptcy. A short prison term might be less painful than that.
Unfortunately, the next sentence is
But Section 3 disqualification isn't one of those cases.
I say "unfortunately" because he was on the verge of an important conclusion. His analysis goes beyond simply stating, as a fact, that the criminal standard of proof is different from the civil standard of proof, and actually explains why the legal system makes such a distinction. He even points out that in some cases, a light criminal punishment would be preferable to a harsh civil punishment. And yet, for some reason, his analysis stops there, just saying that "disqualification isn't one of those cases" where we really need to really think about what standard of proof is appropriate.
So, instead of just stating, without evidence(!), that "disqualification isn't one of those cases", let's think about the importance of Section 3 disqualification. If you become the nominee for one of the two major parties in the US, a reasonable estimate would be that you have a 50% chance of becoming President. How much time would you be willing to spend in jail to get that kind of chance? For me personally, I have basically no desire to be president, and even so I would be willing to spend, say, 6 months in jail, for the salary and pension alone (N.B. I am poor). Actual ambitious people would probably be willing to give up a lot more.
From the perspective of the American voter, not being able to vote for their preferred candidate is a big deal. This is the kind of statement for which no proof should be necessary, but as an attempt at proof I will offer the time and energy Americans dedicate to voting each election year. That behavior seems like sufficient demonstration that it is really important to them.
I do get it, we have to have standards in legal matters because we can't just let every judge and jury make decisions based on their own idiosyncracies. But rather than falling back on the claim, "well, disqualification is not really a punishment, because no one has the right to be President of the United States", I would suggest taking a second to think about what this concrete case of disqualification means, both to Trump and to his supporters. It is actually, to quote President Biden, "a big fucking deal", and should be treated as such.
Dismissing the severity of disqualification without deeper analysis underestimates its substantial impact on individuals and the democratic process. It deserves the same rigorous debate and consideration as any severe legal sanction.
zataomm
6mo ago
I don't see the contradiction. Seems like another way of making the same point is that that taboos aren't passed down as the conclusions of a blue-ribbon commission on ethics, but rather they survive because the behaviors they encourage are pro-social, and therefore groups that adopt certain taboos are more likely themselves to survive and pass their taboos to the next generation. Do you disagree with that?
I mean, it's not that they couldn't have been the conclusions of a blue-ribbon commission on ethics, it's just that their origin doesn't really matter as much as their effect on group survival.
zataomm
6mo ago
For example, something like this argument was (is) very common in the push for legal marijuana.
Exactly! And I guess your point is that the push for legal marijuana is slowly winning, but my counter-point is that legal marijuana is winning much more slowly than it ought to be, given that there is such a strong argument in its favor. Indeed, these are the kinds of important questions of public policy that I am worried about and that inspired this post, Singer's A' being illegal is nowhere near the top 10 on my list of biggest injustices. But we have lots of things that would make a lot of people better off but are illegal because they sound bad, which, as Bryan Caplan puts it, "The way I like to think about it is that markets are great at doing good things that sound bad, and governments are great at doing bad things, that sound good."
I agree with you that Singer's A' is not strictly comparable to A such that we can say supporting A but not A' is irrational, but my point is that the responses I have seen do not even get there, they stop at "A'? Ew, yuck"
zataomm
4mo ago
Yes, good call, I was confusing the criminal cases about interference with the current case.
zataomm
4mo ago
To not clog up top comments, I'm deleting this and and putting it in a new thread which hopefully will be of interest to somebody. Colorado Supreme Court thread
zataomm
1yr ago
Am I the only one who is unable to investigate that idea further because the phrase “grabby aliens” sounds so stupid it actually makes me mad every time I see it mentioned? Probably yes.
zataomm
1yr ago
In any legal system, the ability to effectively apply laws hinges on our capacity to establish clear definitions for the concepts and situations they govern. If someone is to be prosecuted for murder, it's necessary to define what constitutes "murder" - this is referred to as the "elements" of the crime. Quickly googling, in murder, we have: 1. Criminal Act (killing a human), 2. Criminal Intent (purposely, knowingly), 3. Harm (death).
To take another case, if a law declares that certain considerations apply to "married" people, criteria must be set to determine under what conditions two (or more?) people can be considered 'married'.
However, the boring process of defining and categorizing has been thrown into turmoil as we deal with gender identity. I recently encountered an article by a trans writer who strongly objected to the idea that "other people" should be able to "decide" whether a person who self-identifies as trans is "really" trans. The author seemed to believe that denying someone's self-identified gender is offensive in a metaphysical sense, as it amounts to denying the existence of the trans person.
It's fine to not want trans people to feel wrongly identified, but this issue becomes legally significant when there are laws that apply differently to "men" and "women." Concretely, a person convicted of murder may be sent to a different prison, depending on whether that person is categorized as a "man" or a "woman". In these situations, clear definitions and categorizations become necessary to uphold the law. I don't think it serves anyone's interest to simply apply the slogan "trans women are women" in such a case; it seems a perfectly reasonable compromise to apply a hierarchy of cases. An example hierarchy might be:
-
anyone who self-identifies as a woman can be referred to as "she"
-
almost anyone who self-idenfifies as a woman can use the ladies' restroom
-
a basic evaluation should be applied to a self-identified woman before she is allowed to play on a woman's sports team
-
a strict evaluation should apply to a self-identified woman to determine whether she goes to a women-only prison
I'm happy to argue about how strict we ought to be in a given situation, but I'm not happy to accept that there should be no hierarchy of situations at all. We can't take a shortcut on considering the potential harm caused by a false positive vs. a false negative by simply declaring that we will always affirm the dignity of trans people. Furthermore, any system that attempts to identify people as a belonging to "category X" will inevitably produce false positives and false negatives. It is unrealistic and untenable to demand that the false negative rate must be zero (i.e. we must never incorrectly say that a trans woman is not really a woman), especially when being categorized as X has legal ramifications.
I guess this all seems pretty basic, but I don't know that I've seen anyone state the "different situations, different criteria" case, and the alternative seems to be that people are tarred as "transphobes" for suggesting that someone who self-identifies as a trans woman should not be treated as a woman in some specific situation.
zataomm
4mo ago
Yeah, weird. Mod intervention or bug? Definitely a bug in the sense it was not “deleted by user” (me)
zataomm
4mo ago
There are Federal crimes related to slavery though: 18 U.S. Code § 1583 - Enticement into slavery. This is more than just a gotcha; we're talking about punishments here, and I don't really see how the 13th amendment can be self-executing with regard to charging, trying, and punishing an individual for holding someone else in involuntary servitude. So if we imagine a case where a slave sued his enslaver who held him in bondage after 1865, sure, the court would rule that the slave could no longer be held, but without further legislation, they couldn't really specify a punishment for the slave holder. Presumably the slaveholder could then be sued in civil court for damages by his slave. I think in that case the 13th amendment would prevent the slaveholder from using "this man is my slave" as a defense.
Getting kind of far afield here, but the overall point is that the difference between sword and shield actually is important; if the Constitution establishes a specific punishment, then it makes sense to believe that it is up to Congress to establish a procedure for determining to whom that punishment should be applied.
On the other hand, I don't have much to say in response to your point about Jefferson Davis. It's a good point.
zataomm
4mo ago
Having now read the dissent by Samour I actually do think this is a slam dunk argument.
zataomm
9mo ago
Thanks for the link. As others have noted, it's extremely long, but its length does help address this feeling of unease many of us experience when observing or engaging with "culture war"-related topics in the modern online space. You wake up one day and everyone is saying something that is obviously false. I'm not sure whether it's helpful or harmful to my case to throw in examples here, but what comes to mind for me are Larry Summers on female representation, Covington Catholic, Kyle Rittenhouse, Trump's "very fine people on both sides", Florida's curriculum on slavery...
Apparently the "stages of grief" don't have as solid a scientific backing as we might hope, but even so, something like those stages are what I have gone through many times in the past few years as these cases have become hot.
Denial - it's just a misunderstanding, after the initial controversy people will look at the full context and realize there was nothing to get so worked up about
Anger - Partisans are inflaming the issue for their own benefit
Bargaining - If my friends and family would just watch this video, they'd see that the media portrayal has been all wrong. I'll just send them the link...
Depression - This is where I usually end up, because none of the above makes any difference.
So I really identified with your experience as an extended example of the "Bargaining" phase I've gone through myself. To be honest, there have been an embarrasing number of occasions on which I insisted on sitting down with someone and showing them a video or reading them an article that unequivocally establishes "the truth", in contrast to the media narrative. At those times, I would have been glad to pay people to watch these videos, because how could they watch the video and still disagree?
I can't say I've had 0% success in these endeavours; I think on occasion I've convinced people that the situation is more nuanced than they were led to believe. But I don't think I've every had anyone really understand my desperation to make them understand, get why these matters are so upsetting to me. So I quite appreciated your essay, not just because we agree on the matter at hand, but because I know how it feels to be so sure you are right but still need someone else to validate that belief.
zataomm
6mo ago
Maybe proto-Indian males were killing each other a lot in order to marry the victim's widow?
Look carefully at the language the state is using: “the Department believes that AP Psychology can be taught in its entirety in a manner that is age and developmentally appropriate.”
This very much seems to be a scissor statement within this discussion. My reading of that portion of the letter was, "Look, the College Board is freaking out because we have this law in Florida saying that course content needs to be age and developmentally appropriate, so I just want to assure you that, as I see it, AP Psychology can be taught, in it entirety, in a way that is developmentally and age appropriate. Just don't go crazy and show the kids hardcore porn in class or make them affirm that we are all born as trans homosexuals or whatever." In the Washington Post article and others, that line is taken to be an implicit threat, "Hey superintendents, you'd better make sure you keep your course content appropriate, or else [makes throat cutting motion]."
It's not a true scissor because I can understand how the other side would read it as more menacing, but that wasn't my interpretation at all.
zataomm
4mo ago
Trump has filed his petition to the Supreme Court asking them to review the Colorado decision. Lawyers writing briefs don't generally have the same opportunity for snark as judges when they write their opinions, so my favorite quote was:
constitutional speech protections should not turn on opinions from sociology professors
Which seems reasonable to me.
The brief contains a variety of arguments, some of which are stronger than others. One interesting argument I hadn't heard before is that while someone may be disqualified from holding office, they are still permitted to run for office. A bit hard to swallow in the case of a candidate counting on Congress to "remove the disability" after he gets elected to office, but, like I said, interesting.
The brief points out some deficiencies specific to the Colorado proceedings. Candidates are required to file a paper affirming that they meet the qualifications to be President, but the Colorado Secretary of State is not required to independently investigate this affirmation, and thus had no business doing so. A good point, but by now we have challenges across several states, so the Supreme Court is going to need to go bigger to resolve this issue.
The brief argues that the events of Jan. 6 were not an "insurrection", and even if it was, Trump did not "engage" in the insurrection. I agree with this, but my instinct is that the Supreme Court is not going to want to go so far as to make that determination.
The Supreme Court's two main options are unpalatable. They can:
- Point out deficiencies specific to the Colorado procedure
- Take up the case of Trump's eligibility themselves
The first doesn't go far enough, and won't resolve other states' cases, while the second goes too far, taking on more responsibility than the Supreme Court likes to have. For this reason, my expected outcome is for the Supreme Court to lean on section 5 of the 14th Amendment, saying that Congress and only Congress is able to determine eligibility for federal office. As @AshLael has pointed out, this is standard operating procedure for Roberts, he loves to write opinions which conclude by saying, in effect, "if Congress doesn't like this outcome, they are free to pass a new law to achieve the outcome they like."
a sign saying "visiting hours 3-5 pm" at a hospital, from which we can glean that visiting isn't allowed outside this window
Apparently there is some debate about this, with many internet sources supporting your interpretation, but this is not how I understand the phrase "the exception proves the rule." Your example about limited hours (at a hospital, or parking) is commonly used but I don't really think it demonstrates the true meaning of the phrase. My perspective is, as long as people keep visiting the hospital between 3-5 pm, we can't really know what would happen if someone visits outside those hours. Maybe it is really enforced, or maybe the sign is like those vestigial "Please maintain 2 meter distance" signs we see everywhere nowadays, and nobody really cares.
So the way we really prove (in the sense of to test, as in "the proof of the pudding is in the eating) is when a visitor shows up at the hospital at 6pm. If they are turned away, then there really is a rule that nobody can visit outside the hours of 3-5 pm. If they are let in, there is no such rule. So in other words, it's not the sign, but the attempted visit outside "visiting hours," that proves the rule.
Edit: For transparency, the Wikipedia article which I indirectly referenced here thinks I'm engaging in wishful thinking about what I think the phrase should mean, rather than its actual origin. Which.... may be a fair criticism.
zataomm
9mo ago
Technically I said fraud not defraud, so that makes me the best kind of correct. Here is the relevant Georgia law, since you are a big fan.
That said, as humorous as you are, you are still wrong. What do you think is involved in the theft? Let's use our imaginations and imagine that Donald Trump says to the official who controls election data, "hey, it's me, Donald Trump, your favorite president. Way better than Carter, obviously. Anyway, I suspect there was fraud in your state, so I need access to your voter data, please send it to me by December 1st." If the official then sends Trump the election data, do you think he would be guilty of theft?
I'm going to skip the part where you answer. The only way Trump and his allies "defrauded the state" in the case at hand is if they falsely claimed that they had the right to voter data.
zataomm
9mo ago
they LIED. They were not the duly elected and qualified electors. It was public knowledge that the duly elected and qualified electors had been chosen on November 20.
You understand that lying involves more than just uttering a false statement, right? Merriam Webster says: "to make an untrue statement with intent to deceive". No intent to deceive, therefore not a lie. As to your question "How are they not fake?" Same answer. No intent to deceive.
zataomm
9mo ago
Attempted crimes should be punished, but the details of why the "attempt" failed are relevant to determining whether it was a genuine attempt at all. In your attempted murder analogy, yes, you couldn't shoot me because your gun jammed, but if prior to that attempt you purposely manipulated the gun by jamming up the chamber so that a spent round would get stuck in there and be impossible to eject, that would be evidence that you never intended your "murder attempt" to be effective.
The fact that Congress wasn't fooled doesn't by itself make election fraud not a crime, but the fact that apparently Trump tried this maneuver in several states and in no cases were the "fake elector" votes counted, indicates that there is something suspicious about the narrative that he was trying to deceive Congress. Yes, they sent a piece of paper to Congress saying they were the duly-chosen electors and they were voting for Trump etc., but that paper was presented as what it was, an alternate slate of electors. At no point was Pence saying, "well, now I have no idea which ones are the real votes!"
zataomm
11mo ago
the far left are just rich college educated people who live the values they preach
I'm confused... do you mean to say they don't live the values they preach, i.e. they preach leftism, but live like conservatives?
zataomm
6mo ago
You're right that whether I feel sad is not the point of this discussion. The fact that it has generated several replies should indicate to you that people think there is something interesting to be discussed, and it is not my sadness. Here are the bullet points of what we are talking about:
- public policy decisions are made as a function of public discourse
- a significant(?) number of people are unable to have rational discussions, i.e. weigh the pros and cons, of matters of public policy importance
- this situation as described leads to bad public policy decisions which are difficult to correct
I actually don't think I understand your point overall but it feels like your point is we can't rationally prove that pain and suffering are bad, so checkmate rationalists, we're no better than anyone else. Which... okay.
zataomm
6mo ago
Frankly, I think this is a terrible theory of mind.
Well... I disagree that it is a terrible theory of mind. In line with the main theme of this discussion, people just don't tend to think very deeply about most issues. And I don't believe that the average person who supports, say, rent control laws, understands the economic argument against them but still supports them because they have a different moral philosophy from economists, even though I agree that in theory there could be such a person with such a philosophy. I just think most voters go by "gut instinct", so if something sounds bad, they want a law against it, and if it sounds good, they want a law promoting it.
If you are interested in the counter-argument, check out the discussion in the Court's opinion, starting at paragraph 90 (page 51 of the pdf), on whether section 3 of the 14th amendment is "self-executing"
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