Defending Prohibitions on Interracial and Same-Sex Marriages: The More Things Change, the More They Stay the Same

Earlier this week, the Supreme Court heard two cases concerning the government’s ability to prohibit same-sex marriages. In Hollingsworth v. Perry, the Court considered the state of California’s ability to prohibit same-sex marriages under Proposition 8. In U.S. v. Windsor, the Court examined the federal government’s ability to act in a similar fashion, through the Defense of Marriage Act.

After reading through the parties’ briefs and the transcripts of the oral arguments for Perry and Windsor, however, I started wondering about the arguments that were advanced in Loving v. Virginia in support of anti-miscegenation laws. How exactly did the attorneys for Virginia try to defend the constitutionality of their doomed cause? The statutes at issue in Loving — criminal anti miscegenation statutes that had originally been legislated through an Act with the familiar-sounding title of  “A Bill to Preserve the Integrity of the White Race” — seem indefensible in today’s world.

It turns out that the arguments made by the anti-miscegenation side in Loving were far more similar to the arguments made by the anti-gay marriage side in Perry and Windsor than I had expected, even given the cases’ obvious parallels. But the overlap is striking.

In the the Commonwealth Virginia’s Brief in Loving v. Virginia, and in the arguments advanced in the transcripts of the oral arguments before the Supreme Court, the Commonwealth did everything it could to distance itself from the anti-miscegenation law’s racist origins, and appealed to the Court to adhere to traditional notions of the separation of powers. Interracial marriage, the Commonwealth argued, is not a settled science, and the United States’ centuries-long history of permitting only intraracial marriages precluded the Court from establishing a new constitutional right to interracial marriages.

Below, I’ve included excerpts of the Commonwealth’s arguments in Loving, albeit with slight modifications to place the arguments in the modern context:

That there is a rational classification, setting so far as the [Californian] population is concerned, for preventing marriages between [two individual of the same sex], and that this is supported by the prevailing climate of scientific opinion.

We take the position that while there is evidence on both sides of this question, when such a situation exist it is for the legislature to draw its conclusions and that these conclusions are entitled to wait and unless it can be clearly said that there is no debatable question that a statute of this type cannot be declared unconstitutional.

We start with the proposition, on this connection, that it is the family which constitutes the structural element of society and that marriage is the legal basis upon which families are formed.

Consequently, this Court has held, in a numerous decisions over the years, that society is structured on the institution of marriage that it has more to do with a welfare and civilizations of the people that any other institutions and that out of the fruits of marriage spring relationships and responsibilities with which the state is necessarily required the deal.

Text writers and judicial writers agree that the state has a natural direct and vital interest in maximizing the number of successful marriages, which lead to stable homes and families and in minimizing those which do not.

So: given the existence of (1) scientific uncertainty; (2) historical traditions; and (3) the state’s vital interest in stable marriages, then the state necessarily is entitled to prohibit marriage between certain classes of citizens. This passage could have been transplanted, almost verbatim, into the briefs of Prop 8’s defenders.

[I]f the statute equally forbade [women] to marry [women], and [men] to marry [men], then in the opinion of the Framers that that was not a violation of equal protection or due process. In other words, the classification itself was not a violation.

To do the same with a similar passage from Plaintiff’s trial brief in Perry: “Because the [antimiscegenation laws] do[] not treat [whites] and [Negroes] differently, every federal court, and nearly every state court to address the issue has determined that this definition does not discriminate on the basis of [race].” Each race and sex has equal but opposite rights — so the classification based on race or sex is not a violation.

[H]istorically, the regulation of marital relationship was within the States and it was no intent on the Fourteenth Amendment to have any effect at all upon the States’ power over marriage. …

No one has been found who has analyzed this problem, who has suggested that it was the intention of the Framers of the Fourteenth Amendment or the understanding of the legislatures which ratified it that the Fourteenth Amendment affected to any degree the power of the States to forbid [same-sex] marriages. … Our reading of the legislative history is sufficient to lead us to believe that if anybody had suggested that it would have that affect, the entire first section of the Fourteenth Amendment would have been lost. No one, the proponents would never have suggested that the Fourteenth Amendment was going to abolish the power of the States to forbid [same-sex] marriage.

Won’t someone think of the originalists? As Justice Scalia phrased this same argument on Tuesday: “I’m curious, when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868? When the Fourteenth Amendment was adopted? Some time after Baker, where we said it didn’t even raise a substantial Federal 8 question? When did the law become this?” If wasn’t unlawful in 1791 or 1868, how could the Court find it unlawful now?

It is clear from the most recent available evidence on the psycho-sociological aspect of this question that [same-sex] marriages are subjected to much greater pressures and problems then those of [traditional] marriages, and that the state’s prohibition on [same-sex] marriage for this reason stands on the same footing as the prohibition of polygamous marriage or incestuous marriage, the prescription of minimum ages at which people may marry, and the prevention of the marriage of people who are mentally incompetent.

Interracial and same-sex marriages are just like marriages in which parties lack the capacity to consent? This argument didn’t work in 1967, but the proponents of DOMA and Proposition 8 aren’t quitters — they’ll keep trying to make it stick.

It is a statistical study of over 5000 marriages which was aided by the computers of the Harvard Laboratory of Social Relations and the MIT Computation Center. This book has been given statistical form and basis to the proposition that from the psycho-sociological point of view, [same-sex] marriages are detrimental to the individual, to the family, and to society.

I do not say that the author of this book would advocate the prohibition of such marriages by law but we do say that he personally and clearly expresses his view as a social scientist that [same-sex] marriages are definitely undesirable that they hold no promise for a bright and happy future for mankind.

And that [same-sex] marriages bequeath to the progeny of those marriages, more psychological problems than parents have a right to bequeath to them.

As I say, it was published in 1964 and some of the statements which made in it based upon the statistical and demonstrable greater ratio of divorces and annulments in [same-sex] marriages than in [opposite] sex marriages.

Computers at Harvard, people. You can’t argue with this kind of compelling science.

[Counsel for Appellee]: [This scientist] has stated it as his opinion, and it is my conviction, that [same-sex marriages] are definitely wrong because they are most frequently, if not solely, entered into under the present day circumstances by people who have a rebellious attitude towards society, and who are statistically more likely to have a high degree of self-hatred, neurotic tendencies, immaturity and other detrimental psychological factors.

Justice []: You don’t know what is causing and what is affecting, assuming the validity of these statics, I suppose one could be argued that one reason that [same-sex] marriages are sometimes unsuccessful is the existence of the kind of laws that are in issue here and the — and the societal stigma that these laws reflect, is that correct?

[Counsel for Appellee]: I think it is more the latter, that these inherent characteristics of [same-sex] marriages are reflected by the legislature’s decision to enact the laws we have.

The state’s interest in restricting marriage to the union of [one man and one woman] is born from centuries of tradition, and the collective experience of prior generations demonstrates that the best family environment for a child is to have one mother and one father.

[When a child is deprived of a mother and a father, and instead is raised by two members of the same sex,] it causes a child to have almost insuperable difficulties in identification, and that the problems which a child of [gay parents] faces are those which no child can come through without damage to himself.

Now if the state has an interest in marriage, if it has an interest in maximizing the number of stable marriages and in protecting the progeny of same-sex marriages from these problems, then clearly, there is scientific evidence available that this is so. It is not infrequent that the children of [same-sex] parents are referred to not merely as the children of [same-sex] parents, but as the victims of [gay] parents, as the mascots of [same-sex] parents.

Marriage is a vital human institution. And that’s why the government gets to decide which of its citizens are worthy to enter into such a union. Everyone knows gay people have Issues, so the government has every right to discourage them from acting out on their antisocial tendencies.

It’s not bigotry, it’s science.

And we have pointed out in further appendices to our brief … the recent statements of Professor Engel, professor of physiology at Chicago University in which he cautions against [same-sex] marriages on the ground, not of any specific finding of his own, but on the grounds that there has not been sufficient scientific investigation of this matter for a physiologist at least to determine the true effects, physiologically speaking of [same-sex] marriage, and therefore cautions against it.

And it is perfectly clear that the libraries are filled with criticisms and research studies of the cautionary nature which advised against it on a biological and genetic point of view.

Until the question is so firmly settled that no disagreement exists from any academic sources, then societal prejudices can be enshrined in the law. That’s how it is in America. We didn’t prohibit racial discrimination in our laws until there were no longer any racists in our universities.

And on that point, we have said that a — this Court has clearly said that a statute is not unconstitutional simply because it does not reach every facet of the evil with which it might conceivably deal. Would a statute, which did not undertake to regulate marriages between [infertile couples] or [couples that chose not to have children] be unconstitutional, simply because it didn’t regulate a relationship which [does not implicate the state’s primary interest in the marital relationship]? Now, the fact that there are only few [heterosexual marriages] who does not, you cannot inflate this minority group into constitutional significance when you’re talking about the Legislature dealing with the problems with which is it likely to be faced. The statute doesn’t have to apply with mathematical precision. It is sufficient if it reasonably deals with what the Legislature can reasonably apprehend to be an evil and with 99% of the population in [California], the danger of [same-sex] marriages so far as [California] is concerned is the danger of [heterosexual couples who choose not to get married], not the danger of the marriage of either [infertile heterosexual couples] or [heterosexual couples which do not intend to have children], which for all intents and purposes hardly exist, as one of the text writers which they have cited in their brief.

Look, the fact that we only banned gay marriages, but didn’t ban all those straight marriages that can’t produce children, is totally a coincidence, all right? It is too much work to ban all those other infertile couples, that’s all. It was a rational decision. It’s not because we think any less of gays or anything.

It will suffice to indicate by a brief survey of the materials that there are may arguably be sufficient evidence on both sides of the controversy to afford some basis for a legislature to take either side. [A] large number of studies and research projects have concluded that [same-sex marriage] is undesirable. [A dissenting opinion in a prior case considering this question] ha[s] cited to 10 authorities, one of which itself cited 10 additional authorities which would support a legislative finding that [same-sex marriage] is inimical to the public welfare.

[This opinion] says that these studies were frequently made by notable scientists and it reached that conclusion.

[The judge] then goes on and says the authorities’ finding that [same-sex parenting] has no harmful effects are also quite numerous and he considers that authorities available on that point, including the UNESCO statement and he concluded, “Nonetheless, there is still a considerable debate in comparatively recent studies as the desirability of [same-sex parenting]. Thus, even today, a legislature can find some scientific support for the position that [same-sex parenting] should be banned.” He then goes on to say that of course the sociological evidence is even more persuasive in support of a policy against [same-sex marriages].

And in the later portion of the article, he takes the position that even if the presumption of the validity of the statute should be reversed and the State were required to carry the burden of justifying the statute as a piece of social legislation, he says that the social harm argument would present a closer case.

He said, “But again, it is not likely that the State could prove that the social difficulties of the children of [same-sex] couples are exceptional enough to overcome a presumption against [gender] categorization.”

He is assuming here that the presumption is against the State.

Concrete evidence of the effect upon such children would be difficult to obtain particular since [same-sex marriage] is not widespread. The State then could not present any definite estimate of the potential of the evil it is attempting to prevent.

The State then could not present any definite estimate of the potential of the evil it is attempting to prevent. A State might produce a strong case by investing in research, but that would involve considerable time and expense

The reason the petitioners in Perry couldn’t produce any evidence to support their claims was simply because it is too expensive for the state to do this kind of research, and anyway there aren’t enough gays for the scientists to get a big enough sample size to study. And also, gay marriage is too new — newer than cellphones and the internet, even — so we shouldn’t force states to spend money on science just to prove what we already know from tradition.

If the presumption in favor of the legislation is permitted to prevail, then there is arguable evidence on both sides of this question and the Court is not justified in overturning the legislative determination on this point. If the presumption is against us, we say that despite the fact that this article would seem to indicate that the State couldn’t carry the burden, he said the particular difficulty would be in the absence of evidence of a sociological nature which we say is now at hand and which clearly shows that the State has a justifiable and overriding interest in preventing [same-sex] marriages.

Of course, we go fundamentally to the proposition that for over hundred [and fifty] years since the Fourteenth Amendment was adopted, [] the majority of the States [] have been exercising this power without any question being raised as to the authority of the States to exercise this power.

So you can’t reach the conclusion that this statute infringes, a right under the Fourteenth Amendment without examining evidence on behalf of the State to show that the infringement is a reasonable one, just as reasonable as far as we can determine, as far more evidence of the reasonableness of a ban against [same-sex] marriage than there is against polygamous or incest marriages so far as the scientific proposition is concern.

But I cannot conceive to this Court striking down the polygamy or incest statute on the basis of scientific evidence, and I submit that it would be no more appropriate for this Court to invalidate the [Proposition 8] on that basis.

As Scalia would put it: “there’s considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not.” (Or as Johnnie Cochran would put it: “if the sociologists do not all agree, then gay marriage can be prohibited constitutionally.”)

If Your Honor please, there are several decisions handed out by States which again point out the [animus against homosexuals] concerning these laws.

The Missouri laws bottomed on State v. Jackson which basically held that if the progeny of a [same-sex] marriage, married the progeny of a [same-sex] marriage, there’d be no further progeny. That’s a fundamentally ridiculous statement.

Maybe it wasn’t for those men in that day and age, but it certainly is now, and Georgia has an equally ridiculous basis for the laws. In Scott v. Georgia, they held that from the daily observances, they see that the offspring of such [same-sex] marriages are feminine.

So, let me see if I have this straight: (1) Interracial marriage will lead to the destruction of society because the children of such unions will be mules who are unable to reproduce, and also the children of such unions are feminine, and (2) Gay marriage will lead to the destruction of society because the children of such unions will all be gay and unable to naturally reproduce, and also the children of such unions are feminine.

Hmm.

As we view the matter, marriage is a status controlled by the states, and statutes prohibiting [same-sex marriage] or [same-sex parenting] in no way violate the Equal Protection clauses of the state and federal Constitutions. A state statute which prohibits intermarriage or cohabitation between members of [the same sex] we think falls squarely within the police power of the state, which has an interest in maintaining [marriage as a traditional institution] and in preventing the propagation of [] children [by same-sex parents]. Such children have difficulty in being accepted by society, and there is no doubt that children in such a situation are burdened, as has been said in another connection, with ‘a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.’ …

Inasmuch as we have already noted the higher rate of divorce among the intermarried, it is not proper to ask, ‘Shall we then add to the number of children who become the victims of their [same-sex] parents?’ If there is any possibility that this is likely to occur — and the evidence certainly points in that direction — it would seem that our obligation to children should tend to reduce the number of such marriages.

Because discrimination is okay when it protects children.

This judicial position has given rise to the of-repeated mandate that the courts can have no concern as to the expediency, the wisdom, or the necessity for the enactment of laws. As has been said, the courts do not sit to review the wisdom of legislative acts. It is not for the court to decide whether a law is needed and advisable in the general government of the people. Where the legislative purpose has been declared in plain and unmistakable language, it is not within the province of the court to interpose contrary views of what the public need demands, although as individuals the members of the court may hold convictions contrary to those of the legislature.

The basic principle already mentioned applies here with full force. The constitutionality of legislative acts is to be determined solely by reference to the limits imposed by the Constitution. The only question for the courts to decide is one of power, not of expediency or wisdom; and statutes will not be declared void simply because, in the opinion of the court, they are unwise.

For protection against unwise legislation within the limits of recognized legislative power, the people must look to the polls and not to the courts. It is very important to discern constantly that the scope of judicial inquiry in deciding the question of power is not to be confused with the scope of legislative considerations in dealing with the matter of policy. Whether an enactment is wise or unwise, whether it is based on sound economic theory, whether it is the best means to achieve the desired results, whether, in short, the legislative discretion within its prescribed limits should be exercised in a particular manner are matters for the judgment of the legislature, and the earnest conflict of serious opinion does not suffice to bring them within the range of judicial cognizance.

Tl;dr, who cares if we can’t prove if there is a good reason for banning gay marriage or interracial marriage? Judicial activism is wrong.

Just as no individual needs to explain his desire to live, so it would seem to me that neither races of man nor religious or ethnic groups need offer apologies for their desire to perpetuate their [long-standing traditions and moral convictions]. I believe that the tendency to classify all persons who oppose [same-sex] marriage as ‘prejudiced’ is, in itself, a prejudice.

That’s right, it’s the supporters of marriage equality who are the true bigots.

It is my conviction that same-sex marriage is definitely inadvisable. It places a greater stress and strain upon marriage than is ordinarily true when persons of similar religious views are married. We need not guess about this. In every case of interfaith marriage that we have examined, the facts about the greater strains involved have come to the fore. The fact that divorce an separation rates are higher in these interfaith marriages serves also to support this view.

The statistical evidence incorporated in this study makes it clear that the ‘odds’ do not favor same-sex marriages, in that almost two to four times as many same-sex marriages as traditional marriages end in divorce, separation, or annulment. This is a highly significant fact. It is objective and utterly free from emotion-inducing factors. It ought, therefore, to be considered and weighed most carefully.

‘Objective and utterly free from emotion-inducing factors.’ I do not think those words mean what you think they mean.

It is difficult to comprehend how any other conclusion could have been reached. Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the Legislature. Upon it society may be said to be built, and out of its fruit spring social relations and social obligations and duties, with which government is necessarily required to deal. Moreover, under the Constitution the regulation and control of marital and family relationships are reserved to the State, and the regulation of the incidents of the marital relation involves the exercise by the States of powers of the most vital importance. The [California] statute here under attack reflects a policy which has been the law of those land for well over two centuries, and which is still the law in [forty-one] states. These laws have stood, compatibly, with the Fourteenth Amendment, though expressly attacked thereunder since that Amendment was adopted. Under such circumstances, it is clear that the challenged enactments infringe no constitutional right of the appellee. Counsel for appellee submit therefore that [Proposition 8] is not violative of the Fourteenth Amendment to the Constitution of the United States and that the judgment of the Supreme Court of [California] in the case at bar should be [reversed].

This is not about civil rights, or equality, or discrimination. This is about mawwiage, the most important relationship in life, which has more to do with the morals and civilization of a people than any other institution. And the gays don’t understand these kinds of things, that’s all.

In light of this uncertainty [regarding the desirability of same-sex unions], there are reasonable grounds for concern that [permitting same-sex marriages] would necessarily entail a significant risk of adverse consequences over time to the institution of marriage and the interests it has always served. Indeed, a large group of prominent scholars from all relevant academic fields recently expressed “deep[] concerns about the institutional consequences of [same-sex marriage] for marriage itself.” …

[Proposition 8] seeks to channel [] procreative conduct into stable, enduring relationships, where that conduct is likely to further, rather than harm, society’s vital interests in responsible procreation and childrearing… [Proposition 8] thus plainly bears a close and direct relationship to society’s interest in increasing the likelihood that children will be born to and raised by… stable and enduring family units.

Oh wait, my bad. That one wasn’t from Loving, it’s from Perry.

And last, but not least:

[In debating the enactment of the Civil Rights Act of 1866,] Hon. L. H. Rousseau of Kentucky expressed the fear that under the proposal a minister might be arrested for refusing to solemnize marriages between whites and negroes.

Marriage equality: threatening religious freedoms since 1866.

-Susan

Identifying Dogs by Name: The Supreme Court’s Unequal Treatment of Aldo and Franky

This term, the Supreme Court handed down two opinions regarding whether a dog’s sniff is constitutionally admissible evidence. Although the sample size is small, there is an apparent distinction between the two opinions with regards to how the Court has handled the identities of the narcotics dogs that were responsible for the underlying sniffs: dogs who sniff in a constitutional manner are named, while dogs who violate the Constitution with their sniffing are not.

In Harris v. Florida, the Supreme Court sided with the canine, finding that the Constitution does not guarantee a right to cross-examine a narcotics dog to assess its reliability. A dog’s sniffing skills cannot be impugned on the basis of a few false positives — because, after all, drugs have great noses, so the doggy was probably just detecting trace amounts of the defendant’s past crimes, or something. And in the 9-0 Harris opinion, the Court waits only until the second paragraph before naming case’s the four-legged protagonist:

William Wheetley is a K–9 Officer in the Liberty County, Florida Sheriff’s Office. On June 24, 2006, he was on a routine patrol with Aldo, a German shepherd trained to detect certain narcotics[.]

Good boy, Aldo.

But in the opinion handed down today, in Florida v. Jardines, the Court was much less pleased with the dog in question. That dog, the Court concludes, was prone to knocking people over; his sniffing was very impolite, too, and involved the dog running and “‘tracking back and forth,’ … ‘back and forth, back and forth.'” (The dog’s behavior was even contrasted, unfavorably, against the polite behavior of Girl Scouts and trick-or-treaters.) In the end, the Court held that it constitutes a ‘search’ within the meaning of the Fourth Amendment for the government to use nameless, hyperactive police dogs to investigate a home and its immediate surroundings.

In contrast, Justice Alito’s dissenting opinion in Jardines adamantly disagreed with the majority, finding that the drug dog in Jardines was, in fact, a very good boy. In doing so, the dissent immediately identifies the dog in question:

According to the Court, however, the police officer in this case, Detective Bartelt, committed a trespass because he was accompanied during his otherwise lawful visit to the front door of respondent’s house by his dog, Franky.

Justice Alito thereafter remains on a first-name basis with Franky throughout his dissent. Rather than referring to what “the dog” did, as does the majority opinion, Alito carefully notes that “Franky remained on respondent’s property”, “Franky approached the front door”, “Franky was on the kind of leash that any dog owner might employ”, and that Franky’s handling officer “wait[ed] for Franky to find the strongest source of the odor”.

Alito’s personification (so to speak) of Jardines’ drug dog is entirely absent from the majority’s opinion. Scalia, writing for the majority, not only fails to name poor Franky, but in fact goes out of his way to constantly stress what a bad dog Franky was, noting that the dog had to be “on a six-foot leash, owing in part to the dog’s ‘wild’ nature,” as well as that the other detectives present at the drug bust were at risk of being “knocked over” by Franky’s antics. Poor Franky.

-Susan

R v McCormick: The ADE651 on Trial

James McCormick, the British businessman behind ATSC Ltd. and its phony bomb detectors, was finally brought to trial this week in London, facing charges of criminal fraud for his role in selling the ADE651. McCormick is only the first of six individuals who will be tried for their involvement with at least three different companies that have been involved in the distribution of fake bomb detectors. I have been following the activities of these companies for some years now, and although it is is depressing it took so long for these scams to be shut down, this will hopefully be the end of the ADE651, the GT200, the Alpha 6, and the XK9.

…this will hopefully be the end of the ADE651, the GT200, the Alpha 6, and the XK9.

The manufacturers of all four of those devices are among those currently facing charges that have been brought under the Fraud Act (2006). I hope, although I have not been able to confirm, that some of them will also face charges under the UK’s Bribery Act (2010), as these devices appear to have been primarily sold through kickback schemes arranged with foreign officials who were aware of the device’s inability to operate as advertised. Jim McCormick’s devices, the ADE651 and its predecessors, were frequently sold to foreign government agencies in countries that included Iraq, Niger, Georgia, and Bahrain. Other devices, such as Gary Bolton’s GT200, specialized in markets in Thailand, Kenya, and Mexico. At a price tag of up to $60,000 per a device, then, Bolton and McCormick had plenty of overhead to allow them to pay out a bribe to foreign officials, and still make a sizable profit.

The kickbacks do not appear to have been insubstantial, however. In Iraq, the Special Inspector General for Iraq Reconstruction (SIGIR) reported in the January 2011 Report to Congress that, of the $122 million spent by the Iraqi government on the ADE-651 devices, McCormick paid as much as $92 million of that back to Iraqi officials in bribes:

This quarter, Iraq’s IGs continued to examine allegations of corruption within their ministries. SIGIR reported in October that an investigation into the MOI’s purchase of ineffective bomb detectors from a British company was quashed by the invocation of Article 136(b)of the Iraqi Criminal Procedure Code, which allows for a minister to halt judicial inquiries into the activities of personnel working in that ministry. This quarter , the MOI IG announced his intention to conduct a joint investigation with British authorities into the circumstances surrounding the acquisition of these devices. According to the MOI IG, 75% of the value of the contract went to kickbacks received by GOI officials.

The harm caused by the ADE-651 has not been merely financial, however. The ADE-651 continued to be used by Iraqi forces for years after the scam was publicized, and in SIGIR’s October 2010 report, it was noted that “many lives have been lost due to the wands’ utter ineffectiveness.”

In Thailand, where Global Technical’s GT200 and Comstrac’s Alpha 6 are more widely prevalent, deaths have also resulted when the devices failed to detect bombs that later exploded. The devices have also been used to carry out widespread human rights abuses, and hundreds of individuals have been imprisoned based on the devices’ “detection” of their possession of unlawful substances. In Thailand, the fake bomb detectors were slightly cheaper than they were in Iraq, selling at up to $48,000 US dollars a piece — but the price paid for individuals devices varied widely among different Thai government agencies, with some agencies paying up to 150% more than others. (Corruption in Mexico would appear to be cheaper — GT200s bought by Mexican agencies appear to have been sold for around $20,000 each. In contrast, GT200s that were apparently sold to purchasers that were duped and not bribed, including a UN program, were sold for as little as $5,000 a piece.) In Thailand, there were also widely reported “procurement irregularities” associated with the acquisition of the GT200 and Alpha 6, which were bought by Thai military agencies using “special funds” with little to no political oversight.

Leaked cables from the U.S. Embassy in Thailand also noted the ineffectiveness of the GT200 devices, as well as the corruption surrounding their procurement:

Criticism of the GT200 came to a crescendo in Thailand in January when the British government banned export of the device after arresting an executive from the manufacturer of another bomb detection device on fraud charges. [Thai Prime Minister] Abhisit also ordered an investigation into the purchase of the GT200 by various state agencies, following Thai press reports that some agencies had paid more than twice as much for the units as others (note: the first Thai purchases of the GT200 occurred by the Thai Air Force in 2004, when Thaksin Shinawatra was PM). …

Thai human rights activists and their political allies, including Democrat Party deputy leader/MP Kraisak Choonhavan, have been raising the alarm about the GT200 for months, and had engaged us in mid-2009 to see if there were any way we could share US bad experience with such equipment. Kraisak’s primary concern was that innocent civilians were being detained and in some cases charged with assisting insurgent efforts solely based on GT200 readings….

To most people, the GT200 appears to be a glorified dousing rod: it claims to detect explosives at long range, powered by static electricity from the user, without any more complicated sample analysis conducted. The bomb detection squad in Yala told us that they never thought it worked, but they were ordered to use it. The squad passed the GT200 to Emboff to hold; it looked and felt like a toy. In contrast, the GT200’s defenders insist the device was effective when used by properly trained personnel. Failures of the device have been explained away as a byproduct of user error; operators were too tired, sick, fatigued, or otherwise impaired to operate the device properly.

At trial against McCormick, the prosecution provided evidence that McCormick’s original inspiration for the ADE651 was not a bomb detector, but rather a gag gift that purported to locate lost golf balls:

The first device marketed by Mr McCormick, the ADE100, was not the result of extensive research and development but a relabelled golf ball finder on sale in the US for less than $US20, the court heard.

A brochure for the ball finder found at Mr McCormick’s farmhouse home said: “Please don’t ask us for the theory of its operation. We just know it works for most people when used properly. It’s a great novelty item that you should have fun with.”

The businessman bought 300 of the “golf-finders” in 2005 and 2006 and rebadged them as the ADE (advanced detection equipment) 100 with the claim that they could detect drugs and explosives, the court heard.

Mr Whittam said: “In reality, save for a different sticky label, the items are indistinguishable.”

Although the Golfinder was not quite as sophisticated of an enterprise as its British bomb-detector variants were — and lacked the use of technical mumbo-jumbo terms such as “electromagnetic attraction” to explain how the device operated — the essential premise of the business was the same. The devices also looked strikingly similar:

golfinderACTUALLY IT’S A DEVICE THAT HELPS YOU LOCATE YOUR GOLF BALLS. DON’T LAUGH! IT WORKS WHEN USED PROPERLY. ACTUALLY WE UNDERSTAND THE SCIENTIFIC PRINCIPLES INVOLVED. MANY SKEPTICS AND DISBELIEVERS TO WHOM WE HAVE SHOWN IT TO ACKNOWLEDGE IT WORKS IF THE INSTRUCTIONS ARE FOLLOWED CLOSELY. …

IT IS NOT COMUPTER DRIVEN, CONTAINS NO CHIPS OR ELECTRONICS. IT USES YOUR NATIVE ENERGY TO ENERGIZE ITS ACTION. PLEASE DON’T ASK US FOR THE THEORY OF ITS OPERATION THAT’S OUR BUSINESS AND THE MAIN REASON WE HAVE NOT APPLIED FOR PATENTS WHICH WOULD EXPOSE THE TECHNOLOGY. WE JUST KNOW IT WORKS FOR MOST PEOPLE WHEN USED PROPERLY. IT’S ALSO A GREAT NOVELTY ITEM THAT YOU SHOULD HAVE FUN WITH ESPECIALLY FOR THE GOLFER WHO HAS “EVERYTHING”!

The manufacturer of the original Golfinder had other handy products for sale as well — such as its ground microwaving Microwave Units, which could be used either to defrost cemetery plots for easier digging or to nuke fire ant nests. The abilities of these fantastic machines, it would seem, are only limited by the creativity of their manufacturers.

…proving that McCormick originally bought his ‘bomb detectors’ from a company that sold ‘golf ball detectors’ … demonstrate[s] that McCormick was fully aware that his devices were completely incapable of operating as advertised.

In any event, proving that McCormick originally bought his ‘bomb detectors’ from a company that sold ‘golf ball detectors’ will provide a convenient way for the prosecutor to demonstrate that McCormick was fully aware that his devices were completely incapable of operating as advertised. McCormick’s attorneys might try and raise the defense that McCormick was a fool rather than a charlatan, and that he genuinely bought into the hocus pocus of his own product, but that is going to be a hard sell. His devices were so ridiculous in their design that McCormick, who designed the ADE651 and arranged for its manufacture, could not have thought that they might actually work.

Unfortunately for McCormick, he will not be able to try to spin that to his advantage, by trying to claim that his devices were so absurd that there is no possibility that any of his customers genuinely believed the devices worked. Because McCormick was not charged with committing fraud, but rather with “[m]aking or supplying articles for use in fraud”.

The UK probably brought charges relating to the use of fraudulent devices — rather than fraud through use of misrepresentations — because most of McCormick’s customers seem to have been foreign officials who either received kickbacks from McCormick in exchange for arranging for procurement of the fake bomb detectors, or received some similar compensation for their role in the distribution of the devices. As such, McCormick’s acts of fraud by misrepresentation may have been outside the jurisdiction of the Fraud Act (2006), at Section 15, concerning the Act’s “Commencement and extent”:

(2)Subject to subsection (3), sections 1 to 9 and 11 to 13 extend to England and Wales and Northern Ireland only.

(3)Section 8, so far as it relates to the Armed Forces Act 2001 (c. 19), extends to any place to which that Act extends.

In the UK, then, the crime of fraud for misrepresentation applies only to domestic crimes, and does not have any extraterritorial reach. In contrast, per Section 15(3), in cases of fraud arising from “[p]ossession etc. of articles for use in frauds” or “[m]aking or supplying articles for use in frauds,” criminal liability “extends to any place to which [the Armed Forces Act 2001] extends.” The territorial force of the prohibition on possession or supplying of fraudulent devices would therefore extend to “where any body of the [UK] regular forces is on active service” — i.e., Iraq and Afghanistan.

So to the extent that McCormick’s crimes occurred overseas, his sales to Iraq and Afghanistan were still unlawful under UK law.

-Susan

Thinking Like a Lawyer and the Inverted Scientific Method

In Michael’s last post, he covered Brian Leiter’s histrionic reaction to an e-mail that challenged Leiter’s knowledge of what it means to “think like a lawyer,” due to Leiter’s lack of experience at actually being a lawyer. But, as has been noted elsewhere, nowhere in Leiter’s response did he actually address the e-mail’s subject: can a non-practicing law professor know how to “think like a lawyer?”

But before you can answer that, there’s a more definitional question that needs to be resolved first: how does one “think like a lawyer,” anyway? There is rarely a concrete definition provided for this phrase; it is usually given the Justice Stewart treatment, in that one simply knows it when they see it. What is the thought process, then, that evokes this description?

In my own experience as an attorney, I have often had clients accuse me of “thinking like a lawyer.” Good-natured accusations, of course; after all, that’s what they’re paying me for. I was also once accused of “thinking like a lawyer” by a judge — but the judge, unlike my clients, did not intend it as a compliment. (More the opposite, really.) And I’ve gotten accused of “thinking like a lawyer” by other lawyers, too, albeit most often when I’ve come up with a legal theory that is too clever by half.

And from thinking back on my own experiences, and trying to identify the common thread in all of those incidents, the best definition I can come up with is this: to “think like a lawyer” is to engage in an inverted version scientific method. It is the art of identifying the plausible, and then portraying it as the logical. In short, people accuse you of “thinking like a lawyer” when you find a way to depict a given set of facts and law, in an accurate but deliberately emphasized fashion, so that the data compels a conclusion that has been pre-established by the lawyer.

It is an inversion of the scientific method, in that the data does not — and, I would argue, cannot — compel the conclusion. The conclusion is predefined, and the lawyer’s job is to sift through the data and construct an explanation that results in the conclusion. But the steps followed in the scientific process are not all that different from the steps of the legal process, it is just that the legal method follows those steps in a slightly different order.

In defining the scientific method, Wikipedia provides the following methodological process:

  1. Define a question
  2. Gather information and resources (observe)
  3. Form an explanatory hypothesis
  4. Test the hypothesis by performing an experiment and collecting data in a reproducible manner
  5. Analyze the data
  6. Interpret the data and draw conclusions that serve as a starting point for new hypothesis

Both the scientific method and the legal method begin at the same place, and Step 1 for both methods is the same: define the question. For the legal method, the starting point is, What is my client trying to achieve? What is the client’s win condition? (Or, if you happen to be a law professor: what is a journal article conclusion that is likely to be published?)

But after the first step, the scientific and legal methods diverge sharply. Whereas the scientist proceeds to Step 2, the lawyer instead skips right ahead to Step 6: what are the possible results of the legal process that come the closest to achieving my client’s objectives? There are almost always a few different legal outcomes that would satisfy at least some of the goals of the representation, although there are usually trade offs between them. Luckily for the lawyer, she is not hindered by the scientist’s need for a single, unified result. The lawyer can have multiple possible results, and, at least if you are litigator, there isn’t even a requirement that those results not be mutually exclusive results.

Once you have your result(s), the lawyer then goes back again, and moves on to Step 2. Although, for the lawyer, Step 2 is actually a two-parter: Step 2(a): gather and identify all the relevant facts, and Step 2(b): gather and identify all the relevant law. “Relevant” in this context means “could be useful,” either for the lawyer or the lawyer’s opponent. Trying to efficiently identify the most important factual and legal data is a skill in itself, but as a starting point, you need to establish the important factual matters that can be proven by admissible evidence, and then to determine the statutes and case law that will be directly relevant to the case.

And then it is on to Step 3 — and the point in the legal method where “thinking like a lawyer” really kicks in. In the legal method, the lawyer examines the relevant facts and the relevant laws, and identifies all the plausible methods by which the two can combined to achieve one or more of the results that was defined previously in Step 6.

Luckily for attorneys, law is not science; it is not defined by reference to a pre-existing reality, and it is not limited to formulations that are consistent with this pre-existing state. It only has to be consistent within itself. Which means there are lot of plausible ways that those facts and laws can be combined. The question for the lawyer, then, is what are the possible hypotheses that might be consistent with the relevant factual record? You are not looking at what did happen, you are looking for everything that could have happened. Then, taking the resulting class of possible hypotheses, you examine each of them in turn for their consistency with the results defined in Step 6.

And, also luckily for attorneys, “consistency” in this context is defined broadly. Oftentimes, a given statute can be both consistent and inconsistent with a desired result, depending on how you emphasize a word or two in its provisions. “Consistency” can also mean constructing a revisionist version of history — leaving aside what an actor’s subjective motivations were, what are all of the plausible explanations for that actor’s behavior given the post hoc data set you have established?

Then it is on to Step 4, which is creating experiments to test your arguments — or, as we call them in law school, hypotheticals. In short, you test the plausibility of your own explanations, by examining their consistency with existing case law, and by comparing the plausibility of your explanations against the plausibility of your opponent’s, and trying to make sure your explanations are always the more plausible option. And, finally, we arrive at Step 5. For the scientist, Step 5 is analysis; for the lawyer, Step 5 is advocacy. The scientists examines the data they have acquired from Steps 2-4, and then determines how that data might contribute to our understanding of the world, and so arrives at Step 6. The lawyer does not need to bother with that part, because they’ve already established Step 6; to the lawyer, Step 5 involves demonstrating why your explanation of the data is more believable than everyone else’s rival explanations.

And that, in a very large nutshell, is how I would describe the process of lawyering.

So, now that I’ve provided my own definition of what it means to “think like a lawyer,” we return to the original question that so enraged Prof. Leiter: can a law professor who has never been a practicing attorney “think like a lawyer?”

Absolutely. The basic method of thinking like a lawyer is the same for both a law professor and a lawyer. The primary distinction is that the two have very different objectives, but the process they use is more or less the same.

The law professor is different from the lawyer in that — at least ideally — the law professor’s motivation is to identify the most plausible construction of the data that supports a conclusion intriguing enough to be published, whereas the lawyer’s motivation is to identify a plausible construction of the data that best supports their client’s win conditions. In other words, because the law professor’s Step 1 is less bound to the goal of achieving a specific real-world objective, the law professor has a lot more wiggle room on how to define the possible results at Step 6 of the legal method.

So Prof. Leiter was right in that the ability to “think like a lawyer” is not limited to practicing lawyers. Unfortunately for Prof. Leiter, he was not himself thinking like a lawyer when he chose to respond to the e-mailer’s question by being a sesquipedalian bully, instead of by following the legal method and constructing an actual argument.

-Susan

Google Earth Collection of the Disputed Territorial Claims in the South China Sea, East China Sea, and the Sea of Japan

Trying to keep track of all the contested territorial claims in the South China Sea and East China Sea can be difficult. There are hundreds of islands, reefs, rocks, and submerged shoals that are in dispute, and the relevant coastal states don’t always agree on which of those categories is applicable to each specific maritime feature. To make matters worse, most of those features also have at least three different common names in use, which reflects the myriad of competing territorial claims throughout the region.

So in order to have an easy reference source regarding the locations and identities of the disputes rocks, reefs, and islands, I’ve created a Google Earth collection with placemarkers for China’s disputed maritime claims.

South China Sea Dispute

Right now, this Google Earth file provides indicators for (1) the geographical coordinates declared by China as its baselines for measuring the breadth of its territorial sea,  pursuant to Article 16 of UNCLOS, for (i) China’s mainland territories; (ii) the territorial sea and EEZ divisions agreed upon in the 2000 treaty between China and Vietnnam; (iii) China’s claimed territorial baselines in the Senkaku Islands; and (iv) China’s claimed territorial baselines in the Paracel Islands; (2) the submerged features, rocks, and islands of the Paracel Islands which form the basis of China’s claimed territorial sea baseline; (3) the submerged features and rocks in the Spratly Islands and in the Scarborough Shoal that are identified as areas of dispute in the Philippines’ Annex VII arbitration against China; and (4) China’s Nine-Dashed Line Map, outlining China’s nonspecific territorial claims in the South China Sea.

Using Google Earth to view the disputed territories is also helpful in that it provides access to a large collection of user-uploaded photos of the disputed maritime features — which is handy for getting a better idea of just how rock-like many of these “islands” are, or for what a “low-tide elevation” really looks like. It also allows you to play around with the various distances involved, which puts into perspective the tenuousness of some of the territorial sea and EEZ claims that are being asserted.

-Susan