One Person's Opinion

A compendium of random thoughts regarding politics, society, feminism, sex, law, and anything else on my mind. POST YOUR COMMENTS BY CLICKING ON THE TIME INDICATOR BELOW THE POST YOU WISH TO COMMENT ON. RSS FEED AVAILABLE AT http://feeds.feedburner.com/Dilanblogspotcom

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Monday, September 29, 2003
 
MAURICE CLARETT V. THE NATIONAL FOOTBALL LEAGUE:
Ohio State's star sophomore running back, Maurice Clarett, who led the Buckeyes to the national championship last season, has been suspended since then for the season by the NCAA and the Buckeyes for academic violations and other reasons. He has responded by seeking to enter the NFL draft. The NFL has a rule that prohibits college sophomores and freshmen from entering the NFL draft. Clarett is now suing the NFL on antitrust grounds.

I should start off by saying that I am not an expert in antitrust law. I do, however, know how to read cases. And I have read the case that everyone cites as the precedent for Clarett's suit, Denver Rockets v. All-Pro Mgmt., Inc., 325 F. Supp. 1049 (C.D. Cal. 1971). That case involved Spencer Haywood's ultimately successful attempt to play pro basketball before his college class had graduated. A very good judge, Warren Ferguson, held that the NBA's rule prohibiting the entry of such players into the league was a "group boycott" that was per se illegal under the antitrust laws. (There are two types of antitrust violations-- many anticompetitive practices are struck down because they are "unreasonable", i.e., that they harm competition more than they benefit it. Some antitrust violations are "per se" violations, meaning that the conduct has been found to be so anticompetitive that it is always illegal no matter what the purported justification is for the conduct.)

At the time Judge Ferguson rendered his decision, it was consistent with governing Supreme Court precedent that held that group boycotts were per se illegal under the Sherman Anti-Trust Act. (The NBA's rule was a group boycott because it was essentially an agreement among all the independently owned and operated NBA franchises that none of them would purchase the services of an athlete whose college class had not graduated.) Many sportswriters writing about Clarett's case have assumed that Mr. Clarett has a very good case based on the Haywood precedent.

However, since 1971, antitrust law has seen a sea-change. Robert Bork (yes, that Robert Bork) wrote an influential book that argued against per se rules in antitrust cases and in favor of an analysis as to whether the particular challenged conduct harmed consumers. And Bork's analysis has been followed in many antitrust cases. For instance, Silver v. New York Stock Exch., 373 U.S. 341 (1963), which was relied on heavily by Judge Furgeson, was overruled in Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284 (1985), which held that the expulsion of a business from a wholesale cooperative (a form of "group boycott") would be analyzed for reasonableness rather than being barred by a per se rule. In NYNEX Corp. v. Discon, Inc., 525 U.S. 128 (1998), the current Supreme Court recast the group boycott per se rule as only applying in circumstances where the purpose of the group boycott was to harm competitors. (Indeed, the "group boycotts" that are usually the subject of antitrust cases involve agreements by a group of businesses to refuse to deal with a competitor to one or more of the businesses, in order to put the competitor out of business. It is obvious how such a tactic would harm consumers.) Of course, a sports league's determination of who is eligible and who is not eligible in no way harms consumers or prevents competition-- if anything, it invites competition, because if the public desires to see players like Clarett play professional ball, they might patronize a league that permits such players to do so. (Judge Furguson did not see this in the Denver Rockets case, even though Mr. Haywood had played in the ABA, a competitor to the NBA that had no comparable eligibility restriction.)

There are broader issues that go to the extent to which courts should involve themselves in setting and enforcing the rules in sporting contests. I plan to blog on that at another time. There are also broader issues about whether governing authorities in sporting events ought to have the authority to set eligibility rules for their contests, taking into account not only competitive interests but also societal interests (it may do some good, for instance, to force football players to attend college whether they want to or not).

Suffice to say, however, that I do not see Mr. Clarett's lawsuit as a slam dunk. Indeed, I would venture to say that later Supreme Court cases have called Judge Furguson's decision in Denver Rockets into question, and I am skeptical as to whether that case ought to be relied on in deciding Clarett's case. Ultimately, if Clarett presses his claim, he may end up going down as the man responsbile for overturning the Spencer Haywood precedent.

Sunday, September 28, 2003
 
LEGAL PROSTITUTION: AT THE INTERSECTION OF FEMINISM AND CIVIL LIBERTIES
You might remember that I posted here a comment on a conservative who criticized Dear Abby and her readers for praising the friends of a 40 year old with a debilitating disease who procured the services of a prostitute (free of charge, as it turned out) to take his virginity. While reserving the issue of the morality and legality of prostitution for another post, I noted it was, at the least, overly rigid to take the position that the conservative blogger had taken, i.e., that advocating the utilization of the services of a prostitute in this situation was immoral. Rather, this was a perfectly moral solution to a real issue, because this particular guy was not likely to obtain sexual gratification through a normal relationship. (Indeed, he was living with his parents, who were social conservatives and who barred visits by his friend after they found out what happened. Even if the guy somehow met a girl (not easy when you are 40 and disabled), those parents were probably going to make it very difficult to consummate the relationship.)

The issue I left open-- the wisdom and morality of legalizing prostitution-- is an extremely difficult issue. Los Angeles, the city where I live, just passed a law that takes its prostitution ban one step further, with a ban on lap dancing in strip clubs. (According to the City Council, lap dancing leads to harmful conduct that spreads out into the neighborhoods around the strip clubs. I doubt that this is true-- more likely, the councilmembers were simply offended by the exchange of money for sexual gratification that constitutes a lap dance.)

Why is the legalization of prostitution such a difficult issue? For several reasons. First of all, as I just noted with the LA lap dance ban, the reason that it is illegal bears little relation to any reason that it should be illegal. Society wishes to express moral disapproval at the activity; that's why it is banned. It is also banned, to a certain extent, because people are rightly concerned with the urban blight that is caused by street prostitution. But one wouldn't need to ban all sales of sex just because street prostitution is undesirable-- if anything, the availability of sex in brothels, escort services, massage parlors, and strip clubs would decrease demand for sex on the street.

As with all laws based on moral disapproval, there is a fair amount of hypocrisy in bans on prostitution. Obviously, a lot of people patronize prostitutes-- otherwise, there wouldn't be so many of them in business. Further, most people don't disapprove of, or at least wouldn't make illegal, all sorts of informal exchanges of sex for money or something of value that exist in society-- people who have sex in exchange for a nice dinner, or an expensive engagement ring, or half of a rich old man's assets and earnings. But something about the direct exchange of sex for money seems vulgar and immoral to people in a sense that these other sorts of exchanges do not.

But before you think I am unsympathetic to the cause of keeping prostitution illegal, it should be noted that there are in fact strong arguments in favor of prohibiting the practice. First, as noted, street prostitution, in contrast to other forms of the practice, really is bad for the neighborhood, both because of the aesthetic effects of having prostitutes on the streetcorners and because of the secondary effects of drug dealing, prophylactics and litter, people going onto private property to have sex, etc.

Second, the feminist case against prostitution is strong and hard to rebut. There is quite a lot of prostitution that isn't consensual. Underage girls are forced into the practice in Thailand and other third world countries; women are trafficked from place to place and forced to work by violent pimps and managers who keep the profits; immigrants have their travel and identity documents taken from them and then are forced to work as slaves. Further, even nominally consensual prostitution is usually the product of desparate circumstances: drug addiction, inability to support one's kids, or escape from an abusive relationship.

All of this is awful for women. Only a Catherine MacKinnon-type radical feminist would say that it was exploitative for a middle class, educated woman to decide to sell a sex act to a gentleman for $2,500, but only someone with their head in the sand would say that there isn't exploitation of an immigrant sex slave in a brothel who is forced to perform unprotected oral sex on strange guys all day at $50 a pop, with $49.50 of it going to her "manager".

Further, prostitutes often become regular "Typhoid Marys" of STD's. Customers demand, and sometimes pay more for, particularly risky acts such as anal sex, unprotected intercourse, or oral sex without a condom. The ingestion of all of those body fluids from strange men, almost all of whom have multiple partners, is a recipie for disease transmission. Of course, the more exploited the prostitute is, the more likely she is to be forced to perform those acts. One of the many biproducts of the sex trade in Asia is an AIDS epidemic in Thailand and the Philippines.

But prostitution, "the world's oldest profession", is not going away. And like many things (marijuana being a nice example), when government makes it illegal, it gives up the chance to regulate an industry that cries out for regulation. It doesn't help matters that the only state that legalizes it, Nevada, puts such ridiculous restrictions on it (no brothels in the major cities; the workers basically have to stay out of the communities they work in) that most of the prostitution there is of the illegal kind.

How would one regulate prostitution? By aiming at the targets I outlined above: (1) no street prostitution, which really is urban blight, funds drug dealing and destructive habits, and spreads STD's; (2) regulations to prevent the spread of STD's, including requiring providers to register, to use condoms every time, and to be periodically tested, and (3) regulations to curb exploitation of women, including taxing (keeping the price high reduces the incentive to import sex workers under slave-like conditions, because such operations rely on volume which in turn is dependent on low prices), registration of providers, managers, and brothels (no more stealing workers' immigration documents), and strong and consistent crackdowns on anyone who advertises such a service without proper registration.

To make it work, the government might have to also apply the same requirements to other businesses, such as strip clubs and massage providers, where prostitution frequently occurs.

Anyone who doubts that such a system would be a distinct improvement need only come to Los Angeles, where prostitution laws are aggressively enforced, including by closing numerous massage parlors in the San Fernando Valley and by seizing and forfeiting the cars of those caught with street prostitutes. Nonetheless, on numerous streets in Hollywood and near downtown Los Angeles, there are tons of providers plying the trade.

The irony is, laws that reflect moral beliefs are often not the best manner of furthering those moral beliefs. One of the things that my proposal would do is make prostitution more expensive, which would probably mean that there would be fewer transactions. Thus, an opponent of prostitution on moral grounds ought to support it over the current system. But often times, moralists are more interested in seeing their preferences enacted into criminal statutes than they are in actually seeing less "immoral" activity among the citizenry.

Just as some get their pleasure from seeing a prostitute, I suppose others get some pleasure from knowing that such a transaction can send two people to jail.

Friday, September 26, 2003
 
WHAT AN IDIOT:
Take a look at this post at National Review's The Corner:

http://www.nationalreview.com/thecorner/03_09_21_corner-archive.asp#013825

I don't know who Rick Brookhiser is, but I don't think I've seen a dumber thing said in public discourse this year. First, is he advocating that you should be able to shout "fire" in a crowded theater? If he is, he's advocating a version of the First Amendment that even the most absolutist First Amendment zealots don't support.

Second, the right to compel the appearance of witnesses to testify in your defense is guaranteed by the plain language of the Sixth Amendment. And the reason it is protected is dreadfully obvious-- without that protection, innocent people could go to jail, or even be executed, if the government prevented them from calling the witnesses who could exonerate them.

Specifically, suppose an Al Qaeda leader says Moussaoui was not involved in the 9/11 plot. Isn't that evidence that the jury must hear in determining whether to convict Moussaoui? I realize that an Al Qaeda terrorist might have a reason to fabricate such testimony-- but that's precisely the sort of thing that we let juries determine in this country. A jury's function is to ferret out who is telling the truth and who is lying.

Brookhiser refers to Judge Brinkema's rulings allowing Moussaoui's lawyers to question these Al Qaeda leaders as allowing Moussaoui to communicate with other terrorists. This is, at best, a gross oversimplification. First of all, Moussaoui's lawyers, not Moussaoui himself, would be doing the questioning. The questioning would be in the presence of government officials and prosecutors who could cut it off if it appeared that messages were being sent. Indeed, the judge could very well require that the questions be submitted in advance for review. (If the Ashcroft justice department were more interested in actually giving Moussaoui a fair trial and less interested in railroading him through the system, they would agree to this sort of procedure rather than blatantly flouting Judge Brinkema's orders and daring her to dismiss the case.)

And in any event, exactly what harm would transpire if Moussaoui did manage to send a coded message to his co-conspirators? They, after all, are in custody as well. They wouldn't be able to do anything with that message other than sit in the bowels of Bagram Air Force Base while thinking it over.

There are thoughtful arguments on the issue of how much process is due captives in wartime, what is the correct division of labor is between the military and civilian justice systems, how is the government supposed to handle suspected terrorists who might be acquitted if they were tried, etc. And then there are people like Mr. Brookhiser, who don't trouble themselves with such thoughts and just assume that any ruling enforcing an important constitutional right in a terrorism case must by definition facilitate the goals of the terrorists.

 
BEEN AWHILE:
I promise I will have some new posts up soon. Been swamped with work.