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:
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anyone who self-identifies as a woman can be referred to as "she"
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almost anyone who self-idenfifies as a woman can use the ladies' restroom
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a basic evaluation should be applied to a self-identified woman before she is allowed to play on a woman's sports team
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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.
The Washington Post reports: Florida schools drop AP Psychology after state says it violates the law, a good example of the media getting as close to lying as you can get while still remaining in not-quite-lying territory.
As far as I know, this all started last Thursday, when the College Board issued a statement regarding its AP Psychology course and Florida law. In this statement, the College Board wrote: "The state has said districts are free to teach AP Psychology only if it excludes any mention of [content on sexual orientation and gender identity]."
Citation (desperately) needed! Contrary to what the College Board says, I have been unable to find any source on the internet prior to the College Board's statement corroborating their claim about what the Florida department of education requires. The Washington Post claims that the statement was based on a "conference call" between the board of education and school superintendents, but again, I have found no stories where the reporter interviews someone involved in the call in order to confirm the College Board's characterization of what was said.
On the contrary, on Friday, the day after the College Board published its statement, the director of the Florida Department of Education wrote a letter to the school superintendants, clarifying that
In fact, the Department believes that AP Psychology can be taught in its entirety in a manner that is age and developmentally appropriate and the course remains listed in our course catalog
As far as I know, this letter is the only official statement from the Florida Department of Education regarding the application of the Parental Rights in Education ("Don't Say Gay") law to the teaching of AP Psychology. And yet a google search of "ap psychology Florida" returns headline after headline of major news outlets reporting the College Board's interpretation of this law as if Florida had gone out and "banned" the teaching of AP Psychology in its schools.
Without knowing anything about the conference call (because no reporter bothered to check), I have to caveat that maybe Florida did suggest that some parts of AP Psychology could not be taught, only to backtrack after being called out by the College Board. But for me, it seems like a dishonest characterization of the law intended to make Florida and DeSantis look bad.
EDIT:
Okay, having done a bit more research by going back to read the College Board's previous statements on this matter, I have to admit that my characterization was mistaken. In particular, in their June statement on the AP Psychology course, they reference correspondence from the Florida Department of Education Office of Articulation (what a name!), asking the College Board to affirm that their AP Psychology course conforms to the new Florida law. Still not a "ban," but definitely the College Board is not engaged in the unprovoked attack on Florida that I was imagining. There was definitely some provocation.
I do still think this is more about grandstanding by the College Board than a straightforward application of the law, but I was wrong in thinking that the College Board was one-sidedly attacking the Florida Department of Education.
zataomm
8mo ago
What I find infuriating about this discussion is how often the term "fake electors" is used. If the electors were "fake" and the electors commited "fraud", can anyone provide me with a count of how many of the fake electors' votes were mistakenly recorded in the Senate? Oh, none? Amazing! Well, what kind of detective work went into distinguishing the fake votes from the real votes? Was the Secret Service called in for their expertise in detecting counterfeit money?
Obviously the accurate term should be "contingent electors", in the sense that these would have been the correct electors if Trump prevailed in his various lawsuits. It's easy to imagine that in the case where he was able to establish fraud and the court determined that he had won the election, they wouldn't want the process to get held up by the need to quickly get some electors together to cast their votes and mail them to Washington, DC. The Georgia "fake slate" is dated December 14, so there would not have been much time to get these votes recorded if they had had to wait for all litigation to be resolved.
There's such egregious question-begging going on by calling them "fake electors", it makes me crazy how little pushback I have seen regarding this term.
zataomm
5mo ago
Sorry for the leading question but am I the only one naive enough to ask "Why don't the israeli troops just walk into the al-Shifa hospital?"? Where I live, if the national army wanted to take over the closest hospital I am confident they could do it in like 5 minutes by walking in through the front door.
If the answer is as I suspect, "the Israeli troops can't walk into the hospital because the hospital is being defended with guns," then why doesn't that fact appear in your average news story like this one? I know this sounds like a post from a person who really cares about Israel and is always going on about media bias against that country, so I just want to add a disclaimer saying that my position on Israel is that I'm just a normal American non-Jew who doesn't really know or care very much about it.
But honestly, to go back to my opening question, what the heck is going on at the hospital? Why can't they just take it over?
I guess it's kind of funny that after I have been complaining for years about Twitter's bullshit justification for banning Trump under the "incitement to violence" standard, the new management goes and suspends Kanye West because, according to Elon Musk's tweet, "he again violated our rule against incitement to violence." https://twitter.com/elonmusk/status/1598543670990495744
Maybe yishan (formerly of Reddit) was right that when you run a social media platform, there are certain bans that you just have to enact to keep your service alive, even though there are no objective rules you can apply to justify these bans.
[EDIT: Just noticed this was already discussed below. Sorry.]
[EDIT 2: I deleted in <10 minutes but there had already been some replies. No good options based on my past choices so I think least-bad is to undelete. Sorry for chaos.]
zataomm
5mo 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
1yr ago
Hoping early Monday isn't too late for a small-scale question, so here goes:
In the wake of a friend falling victim to a phishing scam in which they were convinced to send a screenshot of a link to a password reset page (indeed, head-slappingly bad), I'm currently being dragged in real life for my hot take, two-part opinion that
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This scam was facilitated by the common advice that you should NEVER follow links because they could be from a hacker and then you will get hacked! and
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This advice isn't actually very good, in the sense that nothing bad can really happen to you just from following some random link.
As a web developer I know something about how the web works, but obviously I don't know everything, so I'm curious if someone else can come up with a really bad outcome achievable just by clicking on a link. Could you, say, send an API request to a bank from within your webpage, and then read the response and cookies from the host page? I'm thinking this would be blocked by both browser and site technology. This has to be what CORS is for, right? Not just to annoy me while I'm developing?
Anyway, like I said, suggestions welcome.
zataomm
5mo 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.
zataomm
8mo ago
I can't imagine a definition of fraud that wouldn't involve some kind of deception. Merriam-Webster:
1a : DECEIT, TRICKERY
specifically : intentional perversion of truth in order to induce another to part with something of value or to surrender a legal right
zataomm
4mo ago
I've been going over the Colorado decision and found this passage from the majority opinion shocking:
Although we do not find Griffin’s Case compelling, we agree with Chief Justice Chase that 'it must be ascertained what particular individuals are embraced by the definition.' 11 F. Cas. at 26. While the disqualification of Section Three attaches automatically, the determination that such an attachment has occurred must be made before the disqualification holds meaning. And Congress has the power under Section Five to establish a process for making that determination. But the fact that Congress may establish such a process does not mean that disqualification pursuant to Section Three can be determined only through a process established by Congress. Here, the Colorado legislature has established a process—a court proceeding pursuant to section 1-1-113—to make the determination whether a candidate is qualified to be placed on the presidential primary ballot.
This just... doesn't seem right. Imagine Congress passes a law granting some benefit to Americans with disabilities, and furthermore establishes a Board to review cases and determine which people are entitled to the benefit, could a State really set up its own separate Board and establish its own criteria determining who is "disabled"? It seems like this would be challenged and lose, ironically, under the 14th amendment, which disallows States from setting up their own processes by which to deny citizens rights to which they are entitled under federal law.
zataomm
8mo 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
3mo 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."
zataomm
5mo ago
Is it just that the news sources I'm reading are terrible? I feel like I've never seen it mentioned that there is another side (not just the IDF) fighting in this war. Like they mentioned that the IDF forces have surrounded the hospitals but it's not clear why, since as far as anyone has told me it is just full of doctors and their patients. I feel like I'm five years old asking these questions but it's just so weird to me, it's like the grownups understand something that I don't.
Anybody still check this out on Monday?
What's a good country and/or city just outside of the Schengen area to spend a month or two? Currently looking at Belgrade, Tirana, or somewhere in Montenegro. Cheapness is a very important consideration in this case.
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
8mo ago
The first person to use the word fraud (without de-) was you. You stated that you didn’t think deception was an element. I commented that fraud would seem to always involve deception. That’s why it’s relevant.
I’ll ask you once again to consider the method by which Trump stole the relevant voter data. It involved lying. A lot. Do you think Trump would have been charged with theft if his claims about the election had been true? The indictment sure makes it seem like the fact he was lying is relevant.
Also, stepping back for a second, there are so many counts in the indictment related to forgery, false documents, and false statements, I don’t know how you managed to start a debate over the one count that (arguably, in your opinion) doesn’t involve deception.
zataomm
4mo ago
This is beautiful in its simplicity, and the Right Thing To Do for the sake of America. But woe unto the Democratic senator or congressman who voted to remove Trump’s disability if Trump actually wins the 2024 election.
zataomm
4mo ago
The sad part is they couldn't even find a good "insurrection" to allege. Hunter Biden's dealings with China? Come on. Can't they argue that Biden in some way encouraged the protesters who block traffic to fight climate change? Or the people who graffiti'd the Lincoln memorial in support of Palestine? Everybody hates those guys, why not go ahead an call it an insurrection?
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
4mo ago
My point is not that we should ignore the Constitution if a candidate is 29 years old, a born Frenchman, or is running for a third term. What I'm saying is that, rather than trying to divine the appropriate standard of review based on criminal and civil law, let's think about this concrete case. Nobody in 1865 was disputing that the "insurrection" of the 14th amendment applied to the Civil War; in fact, it's safe to say that if by any quirk of interpretation the amendment didn't apply to the Civil War, it would have been re-written until it did apply to that case. So it's really crystal-clear that the disqualification provision applied to those who "engaged in" insurrection by being part of the Confederacy.
In contrast, there are a lot of people who think that the 14th amendment's "insurrection" is not properly applied to the events of January 6th, and that even if it was an "insurrection", Trump did not engage in it. The man literally said, "everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard." Just as I, an honest person, can see why many believe that the phrase was empty BS after Trump spent months claiming fraud on the thinnest of evidence, an honest person on the other side should also see why the application of the 14th amendment to Trump is nowhere near as clear-cut as it was to Civil War participants in the 1870s.
So, just like we have different standards in civil and criminal cases, we need to think about what we're really trying to achieve with the 14th Amendment's insurrection clause. It's not just about the law; it's about making sure everyone, including honest Trump supporters, can trust and accept the outcome. Right now, there's a big gap between the two sides. We need to bridge that by understanding the why behind the law, ensuring the process is fair, and making the outcome something people can believe in, even if they don't like it.
Congress has not acted at all, and the issue is whether the bar is self-executing
Congress has acted though, 18 U.S. Code § 2383 - Rebellion or insurrection
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. (June 25, 1948, ch. 645, 62 Stat. 808; Pub. L. 103–322, title XXXIII, § 330016(1)(L), Sept. 13, 1994, 108 Stat. 2147.)
That's why I found this passage shocking; I take your point that if Congress hasn't set up any mechanism to enforce the amendment then it's reasonable to believe that it should be enforcable somehow, but it's much harder for me to swallow the argument that even when Congress does address the matter, the States can set up their own enforcement bodies. In paragraph 105 of the CO decision, the Court writes:
We are similarly unpersuaded by Intervenors’ assertions that Congress created the only currently available mechanism for determining whether a person is disqualified pursuant to Section Three with the 1994 passage of 18 U.S.C. § 2383.
Or are you saying "Congress hasn't acted" because the code doesn't say that § 2383 is "pursuant to the 14th Amendment" or some such language?
zataomm
8mo ago
I responded by pointing out they hadn't been charged with fraud, and the only charge mentioning fraud didn't involve the false electors and didn't include deceit as an element of the offence.
…at which point, I wrote that it’s hard to imagine a definition of fraud that would not involve deceit.
zataomm
3mo ago
Sorry to be graphic, but as a logistical matter, it's very hard to imagine how Trump could have inserted his penis into her vagina while she was both 1. standing up and 2. actively resisting him. In this scenario as written, he has his hand with fingers in a V-shape at her crotch, surrounding her vagina, and then he sort of squats down while maintaining pressure against her crotch, in order to thrust upward with his penis through his open fingers. At the same time, he is supposed to be pinning her against the wall with his shoulder. The shoulder of the same hand or of the other hand? At one point he grabbed both her arms and pinned her against the wall, but then he is using his hands to undress himself and putting one hand between her legs. Is she still resisting at this moment or not?
As written, the whole thing just seems impossible, it could have happened if she "gave up" at some point, but it could not have happened in the way she describes.
Recently, I've been subjected to several posts on Twitter about Peter Singer. Singer posits a compelling argument: Society accepts a certain concept, A, yet its variant A', which along many relevant dimensions is similar to A but should be less objectionable, is met with taboo. Here is Singer's post, although I don't want to get into the the details because I'm thinking not about the argument itself but the prevalent reaction to it. The most common response to Singer's points is not an intellectual rebuttal but rather an expression of shock and outrage. The taboo around A' is like an emotional firewall, preventing any rational discourse.
This pattern of reaction is disconcerting. We live in a world of complex issues that demand thoughtful consideration, yet it appears that a significant portion of discourse is reduced to emotional outbursts. It's really hard for me not to feel disheartened or even adopt a misanthropic view when I see things like this.
So, is this emotional explosiveness truly representative of the general populace, or is it just that on Twitter, the most extreme views gain the most traction? Moreover, how can we, as individuals seeking constructive dialogue, navigate this landscape without succumbing to frustration or misanthropy?
I'm genuinely interested in understanding whether these reactions are as pervasive as they seem and what strategies we might employ to foster more meaningful, thought-provoking conversations, especially in a world dominated by emotional responses.
Besides being obvious sneerclub bait, this post is kind of ridiculous because you can sum it up as "Why does the Motte exist?", but I just want to know if there is any way to bring more people into the Motte's style of discourse or how serious a problem it is that some people are seemingly unpersuadable.
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