Morality and Pricing Revisited by Someone Who Thought Much More Carefully About it Than I Did

Today's truly excellent guest post comes from Guest Blogger "Tim," whom I heartily thank for the obvious care and time he put into what you are about to read. -Alex

My thanks to Alex for the opportunity to discuss his recent post on price gouging. I want to make a minor point about transaction costs and then contemplate whether there is a moral rationale for price gouging. I argue that there is.

To reiterate a bit, the argument against gouging laws—the argument that would allow gouging, if you prefer—emphasizes a functional role on the part of prices. When the price goes up in response to scarce supply, it encourages good behavior. Gasoline producers (for one example) see an opportunity to profit and thus swoop in to disaster-stricken areas with their commodity in tow. Competitors see an opportunity to profit and soon follow. Citizens who live far from the disaster, for their part, observe the price of gas increase a bit and thus adjust their behavior at the margin to conserve, carpooling to work or buying a more fuel-efficient car. Self-interest is the driving force here, but it leads people to behave almost as if a benevolent dictator were guiding them. So the stylized argument goes. 

Alex rightly notes that economic models that predict such happy (Panglossian?) results assume “frictionless” transactions. To continue the gasoline example, the assumption is that Chevron can shift its supply of gasoline around nimbly, without incurring extra costs. This assumption is violated to the extent Chevron’s oil trucks are in the wrong place at the wrong time, to the extent it can’t hire enough extra personnel to take on short term work, and any number of other imaginable circumstances. And it is violated when far-off consumers don’t instantly switch to more fuel-efficient cars, even if they would really prefer to. Alex’s consideration is important because, to the extent the assumption is violated (and it is certainly violated) the appealing consequences such models predict might not come to pass. How much is the no-friction assumption causing us to overstate the benefits of responsive prices?

I do not know how to quantify the answer to that question, but my impression is that it is easy to overstate transaction costs and underestimate how responsive firms can be. One fitting and illustrative example of impressive responsiveness comes from Hurricane Katrina. Steve Horwitz analyzes how private firms responded to the disaster and writes (citations omitted):

[Wal-Mart] uses its own hurricane-tracking software and has contracts with private forecasters for the latest information on storms. By Wednesday, August 24, five days before Katrina’s eventual landfall on the Gulf Coast, [its] command center had gone into planning mode, and two days later, when Katrina struck Florida, the complement of personnel in the command center exceeded fifty persons [up from six to ten]. 

Given the frequency of damaging hurricanes along the Gulf Coast and in Florida as well as the large number of stores Wal-Mart has in that area, the company has a well-rehearsed process for dealing with threatening storms. Central to that process is passing information down from the senior-management level to regional, district, and store managers. . . . The company moved emergency supplies such as generators, dry ice, and bottled water from their current warehouse locations “to designated staging areas so that company stores would be able to open quickly.” These staging areas were set up just outside the likely worst-hit areas to facilitate a quick response with minimal danger of damage. For example, a distribution center in Brookhaven, Mississippi, had forty-five trucks in place before Katrina’s landfall. 

Once the storm had passed, the protocol directed district and store managers to relay information about store conditions back up the chain of command to the emergency operations center. Katrina had knocked out the company’s computerized inventory-management system in the areas it hit, not to mention much of the local phone infrastructure, so Wal-Mart associates and managers relied for the most part on satellite cell phones that its own loss-prevention teams brought in as early as Tuesday, the day after the storm. . . . Wal-Mart trucks with relief supplies were rolling into New Orleans on the day after the storm. (514-515)

Anecdotal, but a good example that moves tired tropes about dynamism of the free market out of the abstract. I suspect few people will argue that the Katrina aid not driven by economic incentives (i.e. FEMA’s efforts) would look favorable in comparison. (How much has FEMA improved?)

Admittedly, this point lacks some nuance. Of course, firms are nimble in some respects, and sclerotic in others. I will not dwell on the matter though, because as Alex notes, not much turns on how we answer the transaction cost question. As long as we think of the market as augmenting charity where charity has failed, rather than as an excuse not to engage in charity, the transaction cost matter is no reason to arrest moving prices. (We can think of charitable giving as upward pressure of supply and thus downward pressure on price. To the extent charity solves people’s problems, the opportunities to price gouge—even if one wanted to—vanish.) 

There is a separate question—a moral one. Even if we agree that prices should be allowed to respond as they will, what do we think of the people who profit from the hardship of others? As Alex writes, “We hope that when faced with victims in need, we think only of how we can help, not of how we can use it to our advantage.” Or as another friend of mine put it, are price gougers not taking advantage of people? And are we not entitled to chastise them as such?

Perhaps, but I think the answer is not so straightforward. My reasons involve turning our attention away from the role that prices play in shaping incentives, and redirecting it toward a second function they can serve: transmitting information. And I think we need to consider carefully what a more magnanimous, kind-spirited, generous arrangement would look like. To explain more fully, please entertain a thought experiment.

Imagine yourself as a gasoline retailer in New Jersey after Hurricane Sandy has struck. Two days after the incident, you receive a small amount of gasoline, enough to fill just one hundred cars or so—not nearly enough to satisfy the line that has snaked out of your lot, around the block, and out of sight, one thousand cars at least. What do you do? More specifically, what would be a morally defensible decision rule for deciding who should get the gas?

Consider first the price-gouging alternative, which is, in implementation, an auction. You could incrementally raise the price from its pre-hurricane level of $4 per gallon. As you do, cars in line will turn away depending on how much gas they have in reserve, how much their plans rely on gas, how likely they think they are to find gas elsewhere, and other factors. You could keep the price going up to $5, $10, $15, and so on until only one hundred cars remain and you can meet demand fully.

The auction approach has some features to recommend it. It gives us both a defensible standard for who should get the gas—who values it most?—and a mechanism to figure out who those people are. (Who is willing to pay the most?) There are also some reasonable concerns about an auction. In particular, it seems to benefit the wealthy, who are less likely to balk at high prices.

One alternative that might seem more fair is to keep the price at $4 and simply sell gas to the first one hundred people in the line. After all, they got out of bed early and have been waiting in line for hours. Doesn’t this effort entitle them to the gas? And doesn’t this decision rule seem fair in that it is undertaken from behind the veil of ignorance (roughly speaking)? You didn’t decide who would be the first one hundred people in line.

On scrutiny, I think such reasoning proves faulty. In fact, the first-in-line rule is very much like the auction. Recall that the price of a good is not how much cash you turn over for it, but what you give up to get it. In this hypothetical, the first one hundred people in line are giving up $4 per gallon for gas, but they also gave up time trolling neighborhoods for working gas stations, or just waiting in their cars. This opportunity cost could easily bring the true price they are paying up to the $15 per gallon possibility we entertained above. To remember this fact highlights a certain folly in trying to control a price. You can limit how much green stuff trades hands, but it is rather more difficult to limit how much people will pay for the things they value. Limit their ability to pay in dollars, and they are likely to pay in other ways—in this case wasteful and inefficient ones. And the 101st-1,000th people in line paid something in terms of time, but got no gas in return.

Note also that the “paying” is doing a lot of work in making the first-in-line alternative seem even passably fair. If the first people in line aren’t giving something extra up for the gas, then all we’ve done is jettison a distribution standard—who values gasoline the most?—that, although perhaps flawed, was at least a real standard, and substitute something completely haphazard and arbitrary: who happened to be first in line? Surely the “value” standard is more morally defensible than a roll of the dice.

This brings us to a third decision rule we might entertain, which I shall call the merit approach. The aspiration here is to answer Alex’s call that we think about those in need and how we can help them. This is a laudable intention, but given the number of people in line, it faces an immediate obstacle: how are we to determine who is most in need? The dilemma is not trivial. Surely, if asked, many people in line—certainly more than one hundred—would make the case that they need the gas.

Perhaps we can take it upon ourselves to adjudicate their claims. Who would use the gas to run a generator that would preserve a child’s insulin (per the Zwolinski’s example in Alex’s post), and who would use it just to keep her computer running and connected to the Internet? Surely we should give the gas to the first person.

I think the merit approach faces three problems that are jointly insurmountable.

First, and rather prosaically, it would be difficult to determine what motivates each person’s desire to purchase gas. In our running example, it would require interviewing the one thousand people in line and asking what they will use the gas for—a question that it would behoove them to answer dishonestly. We can easily imagine scenarios in which the task will be more daunting.

Second, and more importantly, even if we had information about individual motives, it would be impossible to determine the broader effects of our choice. To do so would simply require too much information about individual circumstances. Return to the insulin / computer choice mentioned above. On its face, one of these uses seems to have more merit than the other, but we need more information to know for sure. We also need to know what substitutes are available. Does the insulin patient have a next-door neighbor with a working generator and refrigerator? Is there a relative on the way with a trunk full of gasoline containers? Either of these possibilities makes the insulin-preservation use less pressing.

More than just knowing about substitutes, to determine broader impact of our choice would also require knowledge about second, third, and fourth order effects. Consider again the person who wants gas to power her computer. Suppose she wants to get her website, which sells rubber o-rings, up and running again. This still seems to be a matter of secondary importance. But suppose furthermore that she is the region’s leading distributor of unusual o-ring sizes, and that the water pumps being sent to the area to help drain flooded homes require a size only she has in stock. All of a sudden it is easy to imagine the gasoline doing more good in her (profit-seeking!) hands than elsewhere.

The third consideration is the most subtle and abstract. It concerns the role of judgment. Suppose omniscience—that the information problems I engage above were to disappear. Even then, to allocate gasoline according to the merit approach, or anything like it, would require us at some level to make a determination about what use is more deserving than the others. It requires us to do so. How? 

Whatever ethical theory we might employ—Rawlsian, utilitarian, Kantian, whatever—is sure not to be universally acceptable and, as such, would impose our value judgments on others. For us to take up this mantle is, I think, perhaps a small but insidious step down a problematic road, for it surrenders the moral high ground of liberty and pluralism in favor of—I’m not sure what to call it, but something where one person gets to impose his world view on others. For the case at hand, the concession is, admittedly, quite minor. But to the extent we wish to extrapolate from the present example and apply its logic to the grand business of governing on the large scale, it is a consideration that we should acknowledge. There are those who would say the concession is a step toward authoritarianism.

Bathed in these considerations, the “auction” approach looks far more attractive and, we might say, more moral. If we think about it as distributing resources according to an ethical theory, it is a very loose ethical theory and not one that elevates one individual’s judgment above others’. A quote from Hayek is fitting here: “Our problem is whether it is desirable that people should enjoy advantages in proportion to the benefits which their fellows derive from their activities [i.e. value, expressed through willingness to pay] or whether the distribution of these advantages should be based on other men’s views of their merits” (emphasis mine). 

Importantly, the auction approach also goes far in solving the information problems. It removes the incentive to lie, since payment requires you to “put your money where your mouth is.” Furthermore, prices, when allowed to filter through a complex system, aggregate information about substitutes and second-order effects in a way that no purposeful investigation ever could. (This is the topic of a seminal article by Hayek.) To consumers who have substitutes available, as in the refrigerator-next-door example, individuals will value the gas less and therefore be willing to pay less for it. To the extent a person can use a commodity to generate greater social good, it will be more valuable to her and she will be willing to pay more for it, as in the o-ring example.  Thus, we can think about the station attendant’s auction not so much as profit-seeking, but rather as answering a moral question that would otherwise be intractable: “How can I distribute my commodity such that it does the most good?” Then, the relevant consideration if we want to judge the gas station owner is not the extent to which he profited, but rather what he chooses to do with the profits. (Perhaps he turns around and donates his windfall to charity. Would anyone call his price gouging immoral in this case?) 

Note that nowhere above have we seen a line of argumentation that I think is too often wielded in favor libertarian conclusions: the Randian emphasis on property rights and freedom of action for its own sake. I often find arguments along those lines too narrow in focus, often insensitive, and occasionally vulgar. The moral case for liberty can be made on friendlier, and more instrumental, grounds, as I have tried to do here.

It has been said that, when exchanges are genuinely voluntary, the only way to obtain the things you value is to help other people get the things they value. This notion is a sound basis for an economic system. Given how much of ethics is wrapped up in distribution—questions about who gets what—can it be a moral guide as well?

I'm Going to Charge You to Read This, but Only if You REALLY Want To

A multimedia post today! First, for your viewing pleasure, I give you this video on price gouging:

OK, and now a blogger's prerogative: raising questions about something without actually giving any real answers (NB: on immediate reflection, this actually seems like a practice many of us - myself included - could benefit from participating in more often).

First, I find the broad strokes of the economic argument pretty compelling. Higher profit margins might give people an incentive to take goods to the place where they are needed. If, say, canned food is in high demand at the site of a disaster, I might be persuaded to head to my local supermarket, stock up, drive in and sell at a profit. We might question the purity of my motives, but at bottom, I was induced to take a good and provide it to people who need it.

But: the scenario painted in the video assumes that a functioning market sprouts up more or less immediately upon the increase of demand. Here, I think we have good reasons to think that the narrow window in which a profit might be made, the possibility of moral judgment (more on this below), and the inertia acting against those who might create a market stifle its emergence. (I think people doing nothing usually prefer to keep doing that; also, people have - you know - jobs and what not they might not want to leave to take soup to Long Island to make a quick few hundred bucks). All of which is to say that a robust competitive market in, say, ice might not actually emerge.

Law and economics literature often says "assuming no transaction costs..." which I usually choose to read as "assuming things are totally different than they are in the world around us..." Transaction costs are not only just there, but I tend to think that people themselves are walking transaction costs. Economists can treat us as rational maximizers all they want - and many fruitful models have been built on that premise - but a quick look around gives the lie to that assumption as far as I'm concerned.

But I digress, and as a friend of the blog rightly points out, allowing price gouging doesn't mean people can't go in and offer aid and generosity from the goodness of their heart. Maybe they drive down the price being charged by those there to make a profit. But I suspect the interaction between aid and a quickly emerging market is likely to be complicated. A few meandering questions. Does charitable aid prevent the emergence of a market? Does even a nascent market prematurely diminish charitable aid? Does the potential of moral stigma aid threatens profit with undercut market incentives? (Is that a bad thing?)

But wherever we land on the question of profit vs. aid, and whatever theses we advance about the relationship between the two, it seems clear to me that we do often make a judgment about those who profit off of somebody's hardship. I've been trying to think about why this is, but I can't get beyond or around a gut feeling that we think of it as an indicator of a particular kind of selfishness. We hope that when faced with victims in need, we think only of how we can help, not of how we can use it to our advantage. We want to think that it brings out the charity in us and encourages us to sacrifice, not profit.

A couple of things to complicate the picture. First, it's an open question as to whether we are likely to live up to this standard. Second, it represents a particular view of morality with which people are, of course, bound to disagree. My aim here isn't to suggest that judgment of profiteering is necessarily correct, but rather that I think it's there.

As always, I would love to hear what people think about this issue. Should it be illegal? Is it immoral? Why do we seem to judge it so harshly? And what can we do about any of it?

Norms of Courtship, Part 2

Last week, I wondered when texts became the primary mode of dating communication, whether my generation wants stricter rules to govern dating/courtship, and what role internet dating plays in the whole shebang. 

Today, to put it bluntly, I want to ask exactly how much one ought to be able to know about a potential date's sexual habits before ever going on an actual date.

Before I really get into it, some actual questions people answer on OKCupid:

"If a trusted partner asked you to submit to them sexually, would you? Assume that this would involve letting them collar you, command you, and have control over you during sex."
"How old were you when you lost your virginity?"
"You are more likely to have an orgasm via:"
"Do you like sex toys?
"Preferred position: are you a top or a bottom?"
"How big is your porn collection?"
"Do you kiss on the first date?"
"In your ideal sexual encounter, do you take control, or do they?"
"Is it easy for you to achieve orgasm?"
"How often do you masturbate?"
"Do you enjoy giving oral sex?"
"Suppose you have an attractive cousin, and the cousin is also attracted to you -"

No, screw it, I'm not even finishing that last one. Now, I think people should generally be more open about sex than they are, and I think that some of these questions are telling about a person. (I also acknowledge that there is a certain type of relationship that sometimes originates on OKCupid for which these might be extremely relevant answers).

But it's one thing to answer the questions privately because you think that, for example, the frequency of one's self-pleasuring adventures is important information for your total match percentage. It is another thing all together to answer them publicly.



I don't think I'm stepping out on a limb when I suggest the following: Sitting down for a first date with someone whose intimate sexual details and preferences you already knew was a fairly unusual occurrence prior to the advent of internet dating. Knowing these things in advance totally changes the way dating happens. Let's take, as an example, "how easy is it for you to achieve orgasm?" This is normally the sort of thing one learns during a relationship (one imagines from experience more often than not, but that's largely beside the point), rather than prior to ever meeting the person in question. It seems unobjectionable to say that this is unusual, and similarly uncontroversial to say that the change is precipitated by the subtle (fine, not particularly subtle) changes in rules and expectations that internet dating as a platform has contrived.

This may be a simple point, but worth pausing on for a moment before reaching the post's climax (sorry) (actually, no: I'm not sorry). I can totally see how someone could think "sexuality is important, and indicative of facets of someone's personality" and include some of these questions (most of which I assume are user generated). But the knock-on effect has been that people on first dates know far more about each other than one might otherwise expect.



But just because it's different doesn't mean it's necessarily worse. That said, let me suggest two reasons this may not be a positive development.

First, discovering these things is part of the process and even the fun of dating. Anticipation, discovery, mystery, and the unexpected are part of what make dates interesting (at least to me). This is true of the physical as well. For my part, learning what a person likes or doesn't like (etc.) in the bedroom is part of the fun; it's a process of learning about a person that takes place in an intimate, personal space. Taking this out of courtship makes it worse as far as I'm concerned. And yes, I know we could all simply not answer those questions publicly, but let's face it: we aren't to be trusted. We're simply too curious what that cute boy or girl's answer to the salacious question is, and it's all over.



[The Greeks knew all about this; they called it akrasia. To Borrow Alain de Botton's definition: "A perplexing tendency to know what we should do combined with a persistent reluctance to actually do it."]

Second - and relatedly - we're so interested in sex, but it's possible - possible - that there are other important things, too. I worry that if we go into first dates preoccupied by sex (fine, "more preoccupied by sex than usual") we won't give proper attention to other personality traits that constitute compatibility.

We don't always know what's best for us, and even when we do we aren't always capable of the self-restraint required to get it. Sometimes we need rules and institutions to help us get there. When the rules and norms of dating require that you go on a few dates - or even just one date - before you get the answers OKCupid so readily provides, you are forced to be patient, even if reluctantly. You may be at dinner dying to know if your date likes taking control in the bedroom, but you still go to dinner. You still  have conversation; you still learn non-sexual things about the other person; you still learn some things about your compatibility. It's helpful when rules and norms make use take stock of important things we might otherwise be too impatient or selfish to think about.

I'll leave you with that thought: sometimes rules and norms are the restrictions we need to get what we really want. Freedom isn't necessarily being able to do whatever you want to do whenever you want to do it. Rules, norms, institutions, and the like can enable us to make the choices we want to by limiting or eliminating options that are attractive or tempting, but ultimately ill-considered. More specifically, let me say this: if you go on a date already knowing what the person sitting across from you is into in the boudoir, you've missed out on some of the fun before you ever started.

Norms of Courtship, Part 1

At some point during my grad school dating life - I'm not exactly sure when - a switch was made: texting replaced calling as the primary mode of arranging dates, flirting, etc. I can't put my finger on how I started to feel this way, but all of sudden when I would call a woman for a date, I felt decidedly old-fashioned (which isn't always how one wants to feel while trying to get a date). It also took me a while to understand that a text response to a voicemail isn't necessarily a dodge (which previously it had always been). Rules were changing, and I've frankly been slow to catch up.

It made me think of the scene in Swingers where Jon Favreau leaves a series of increasingly embarrassing messages on a potential dates answering machine (warning: this scene is totally painful to watch):

Vince Vaughn and Jon Favreau later said that the reason this spoke to people in 1996 was that Gen X was the first generation to have to deal with the perils of leaving a voice message. It was total treachery: you couldn't win, you could only avoid a loss. 

For my part, I felt I had just started to really understand the art of leaving just the right message (though certainly I had not mastered it). Now the rules have been changed up on me. On the one hand, writing a text doesn't have the challenges of spontaneity, but it has a whole set of norms and rules associated with it that I have yet to discover (and that one worries about discovering the hard way...). 

This was already in mind when I read Tracy Clark-Flory's "Who Needs Casual Sex?!" at Salon over the weekend. Clark-Flory talks about transitioning from the hookup culture back towards something that looks more like traditional courtship, with a gentleman bringing her flowers serving as the symbol for the shift (with him turning down first-date sex as the clincher). 

There's been a lot written over the last couple of years about the hookup culture and changing romantic expectations, whether it's good for women, driven by men or women, good for my generation's future relationships, etc, etc. What seems undeniable, though, is that the rules of appropriate dating behavior are shifting and ambiguous at best, and perhaps even disappearing. 

I certainly don't intend to use this post as a call for a return to the highly formalized courtship practices of our male-dominated past, 

but I do think there is a relationship between our departure from rule-bound courtship and the rise of internet dating. I think we want some degree of constraint, some rules, and some reliable expectations. It's hard to go into a date without any idea if you're playing by the same sets of rules. We all know it would be easier if there were some norms or rules that could help us through. 

And it seems norms have started to emerge on dating websites. 

There are certain expectations about how long before you meet, what sorts of activities are appropriate when you first meet in person, etc. They're certainly variable, but the variability is a little more predictable: if someone marks on their profile that they're looking for casual sex, the expectations change, the rules change. 

I don't know why a more or less stable pattern of norms has emerged around internet dating (or maybe they haven't and I'm just wrong - always a possibility) but not around more "traditional" avenues. Part of me thinks that it was simply an easy supply to meet a growing demand. As I said, I think my generation wants more structure in this area of our lives, and that was an easier need to fill in fora that were already built around behavioral expectations: fill out a profile, and here are the rules guiding profiles; here are what kinds of pictures are allowed for the profile, you must answer x-number of questions, etc. Given that internet dating already had structure to it, we could more easily build new expectations around it. 

That said, I think it goes to far sometimes. To tease next week's Part 2: internet dating has created answers to too many questions. Is it a good thing that one can go into a first date already knowing if their date kisses on the first date? Knowing how many dates they usually wait before having sex? Knowing their answers to perhaps hundreds of (sometimes intensely) personal questions? Tune in next Wednesday for an off day post where I bloviate on those questions. 

What Do Beer, Road Construction and Antitrust Have in Common?

You wouldn't think that that many legal concepts influence what happens when I allow cars to park on my lawn every football Saturday, but - as I hope I am at least beginning to convince you - laws and rules are everywhere and affect everything. So every Saturday, when I amble out to my driveway, set up a sign that says "Parking, EZ - OUT!" and stand there with a beer while people literally drive past me and hand me money, there are any number of systems of rules that are influencing what I do. Let's look at just a few.

Antitrust Law
No, seriously. I live at an intersection, and the owners on all four corners sell parking. And each week we yell or mosey across the street and fix our prices. It's almost always $20 (at least these days - it was less in the dark years when The Blue was awful), but it's still straight-up price fixing. It is, no doubt, a restraint of trade, which the Sherman Act expressly forbids.

I'm not going to spend a lot of time on this because the idea of a game day attendee suing the four of us under the Sherman Act is so patently ridiculous. But there are some actual legal issues that we could spend time discussing if we wanted. Is our agreement a contract? We exchange promises of a sort, that might serve as consideration. Is our commerce within Congress' power? I almost always get out of state license plates, there's a colorable argument it's "interstate." I'll stop, but hey - if you're a contracts or antitrust professor, food for thought for exam questions.

Of course, underlying all of this is what might be considered an economic "law:" supply and demand. The supply on my corner is fixed; we can only get so many cars on our lawns. But demand various on any number of axes. If Michigan sucks, demand goes down. The demand over a given period of time, at least, is different for 12:00 starts and 3:30 starts - they trickle in a lot more slowly for later games. And, as I'm learning all too concretely this year, demand varies a lot based on traffic patterns. Which brings us to:

Federal and State Bond Issues
The bridge between my house and The Big House

is under construction, as is a HUGE portion of the major road leading in from the east. These are paid for by bonds and state and federal expenditure, which are authorized by a complex set of laws. You would think this has little to do with my parking situation, but since the traffic patterns have created new bottlenecks away from my house and decreased the overall traffic on my side of town, these expenditures have made parking on my corner a lot less attractive. I assume that lawn owners on the other side of town and at the new bottlenecks have seen a substantial uptick in their traffic. Point is, infrastructural construction paid for an authorized pursuant to law have had a material effect on how parking is done around my house.


The Informal Norms of Residential Parkers
Yeah, this is a thing. My neighbors and I may all agree to a fixed $20 price at the start of the day, but it's understood that as game time approaches we can lower our prices with reprobation. What happens, you might ask, when one of us bucks the norm and decides to be a rational maximizer and undercut our neighbors? I don't know. No one has in the five years I've lived here. The norms of cooperation are pretty strong.

As are the norms that govern the parkers themselves. I never had to ask anyone to clean up, or to not grill, because the norms of parking - heck, of basic decency - meant that no one ever did something like fire up a grill without asking me first, and everyone always cleans up after themselves. And, as you might already have guessed, these aren't the only norms that influence how I go about my business on Saturdays.

The Rules of Partying
I throw a tailgate for friends on home game days pretty much without exception.

It would be weird for me to ask everyone over and then spend all day in the driveway, don't you think? There are certain expectations and rules of civility that come with hosting a party, and most Saturdays I have to make choices about when I can stay out on the driveway and usher cars in, and when I need - ok, "get" - to go back and have BBQ and some beers with my friends. It doesn't cause problems most of the time, but it's another set of etiquette considerations that play into what I do on Saturdays.

I could probably get more detailed, but I think you get the point. It seems simple. I put on a hat and sunglasses, drag my sign out to the road, open a beer (are there rules about how close to the road I can take a visible alcohol container?), and wave cars onto my lawn while collecting their cash. It's the easiest money I've ever made. But lurking in the background behind even such a fun, seemingly simple thing, there are lots of laws and informal rules that impact how I go about my business. I don't think about them all the time - I do have to get out of bed in the morning - but there they are. Something to think about if you ever come tailgate with me.

Baseball's Change

It's cold this morning in Ann Arbor (well, cold for September), which means fall is on its way, which means football season is here, which means playoff baseball will be here soon! Next week, a longer post on the norms that organically emerge in the world of game day parking in my neighborhood, but since time today must be sacrificed to the dissertation and job application gods (they are jealous gods), a few quick wonderings about the fifth playoff time in baseball will do. 

For those of you who aren't fans baseball has two leagues, with three divisions each. Until this year, each division winner made the playoffs along with one team from each league with the next best record overall called a "wild card." This year, there is a second wild card team. The two wild card teams will play each other in a one-game playoff, with the winner advancing to a five game series against one of the division winners. 

Now, even under this new, marvelously accommodating system, my Boston Red Sox will not make the playoffs. 

$175 million doesn't buy what it used to. Also the Cubs aren't even close because don't EVER forget that God hates the Cubs.

In any event, my personal tendency in situations like this is to be skeptical of altering a traditional approach. Had I been older in 1994 when the wild card was added in the first place, I think I would have bemoaned the fact that we now had divisions, and multiple series, and not simply just two League Championship Series, and the World Series. But that ship having sailed, I actually think this new system might be an improvement.

What, ideally, are we trying to do with playoffs? Hopefully we achieve two compatible goals: 1) the system, more often than not, allows the best team the best chance of winning, and 2) fans are entertained by the process. The concern with adding in a fifth team is that it reduces the best teams overall chances of winning, and I agree that if it turns out that either the fourth of fifth team in ends up winning an unusual amount of the time, then the system isn't working like it should.

But here, I think the winner of the one-game playoff between wild card teams will put the winner at a pretty big disadvantage as it moves to the next series. Presumably the wild card teams will use their best available starting pitcher for the play-in game, which means he won't be able to pitch again until Game 4 or 5 of the next series, if there IS a Game 4 or 5. It's not a deal-breaker, but it's enough of a disadvantage that I suspect the wild card teams will win less often than they used to, and I think rewarding the division winners by doing this is OK. If you don't want to burn your best pitcher in a one game playoff? Well, you should have won the division.

So let's assume for the moment that the new system isn't actually worse at giving the best team the best shot at winning, and I actually think it might give that team an extra advantage compared to the old system. I don't think the second criteria is even debatable. This is going to be wildly entertaining. One game playoffs are awesome, after which I don't anticipate any drop-off in entertainment from the rest of the post-season. Furthermore, even more teams will be playing for that extra playoff spot, so the end of the regular season  may be more exciting too.

Mere excitement would not be a good enough reason to change the rules. There might be lots of things that would make a game more exciting but would either fundamentally change the parameters of a baseball game itself, or might not further the goal of having the best team rise to the top. BUT: here I think baseball has - perhaps despite itself - found a way to enhance excitement while still maintaining such a goal.

More broadly, it's of note that the way the rules guiding post-season play are (re) structured changes the strategy of teams involved: those who are still in the hunt may elect not to test young talent, but instead chase a playoff spot, teams in the one-game playoff may elect to use their best pitcher or not depending on circumstances. The change is comparatively minor, but it's good to be mindful of the knock-on effects of a rule change.

That's all for today. Happy September!

Bachelor Party!

What function, exactly, do we expect bachelor and bachelorette parties to accomplish? It should be enough, I would think, to have the bride- or groom-to-be say at the end "that was really fun," but it's not, is it? No, we need it to meet expectations. "Well, we had a great time. We made omelettes and crocheted sweaters for ducks." What? No.

We expect that the bachelor or bachelorette will debase themselves in some way, that they will become horribly, abysmally drunk, that the activities will hew to gendered stereotypes (sports games, steaks, poker, whatever it is women do at bachelorette parties), and that feeble gestures of the "so, are you ready to get married?" variety will be made towards the gravity of the situation.

I like traditions as much as the next guy - probably more than the next guy - but I wonder if we think much about their sources. We talk so much about "the last night of freedom" - thus the ubiquity of strip clubs at such things - but when you cast it as the French do it comes with a bit more bite. "Enterrement de vie de garçon/jeune fille;" "the burial of the life as a young man/woman." That's dark, don't you think? I recognize that it's often meant in fun or ironically, but I sometimes find the implication for our view of married life sad. Particularly when we consider the historical disparity between the sex lives of bachelors and the "virtue" demanded of their proper counterparts, thinking of these send offs as eulogies to our boisterous youth reifies unhelpful stereotypes of both sexuality and marriage.

OK. I don't mean to sound like the wet blanket killjoy who doesn't know how to have any fun. I'm not. But for me, traditions are best when the pageantry itself focuses our attention on the import of the moment. (Remember the point I made about the Tibetan moon festival? Like hell you do.) So if what we really want these parties to do is focus attention on what our friends' allegedly won't be able to do any more - which I don't think it is and certainly shouldn't be - then let's stick with the enterrement de vie de garçon. But what if we think of them instead celebrations of the friendship between the groom and his groomsmen (or bride and her bridesmaids) and the coming change in his (or her) life?

As far as our activities, this wouldn't change all that much. We would still go out drinking, to big dinners, to baseball games, etc. - though maybe not to strip clubs... hard to figure out how that would celebrate friendships or marriage... So my point - if I have one - isn't that we need to scrap the whole practice and start from scratch, but basically just to be more critical about what we're doing and why. Traditions are best when the practices they force us to enact serve as reminders to think about or remember something important. Thanksgiving, when done right, surrounds us with family and good food, and reminds us that we are lucky to have them. Dressing up for dinner, doing it more formally than we normally do, adding in the pageantry of preparing standard dishes, all serves as a ritualized reminder that we are lucky to have friends, and food, and family, and ought to give thanks. A bachelor(ette) party can do much the same thing; in fact it inevitably does. I just want us to be clearer on what it turns our minds to.

Books, Sunshine, Cards, and Nudity: Notes from the North

I'm fresh back from vacation (Yes, another one... what? Well, how is it my fault you aren't an academic?), this time a week on the northern shores of Lake Huron, away from it all with my father, brother and uncle. There we were, four men surrounded by water, miles by boat from the nearest other human, having with us only what we had brought.

It wasn't exactly the state of nature; I shouldn't get carried away. We had a roof over our heads - even if it's beginning to bow a little in the middle, and a kitchen with a stove and propane refrigerator. We even had running water and electricity the two hours a day or so we ran the generator. But for the most part, it was just us, separated from civilization.

But even there, even among only four people - and close relatives at that - informal rules dictated quite a bit of what we do; you don't do dishes if you cook dinner; don't leave food out - it attracts animals; it's a family place, we have to make sure to sweep out and clean up in a particular way before we depart. Our habitual games of hearts are punctuated not only by the rules of the game, but the informal norms that govern our particular - and lax - feelings about table talk.

But that isn't what I want to write about; I'm sure I will spill a lot of digital ink in future posts about the norms in small familial groups - there are too many opportunities and too much material. I want, instead, to spend a few words talking about what I did leave behind. Even for just five days, it was wonderful to be freed from the little social and personal rules that govern so much of what we do, and even more wonderful were the small, daily revelations that one rule or another didn't apply while I was on the island.

I didn't ever have to worry whether an email required an immediate response or how long I could wait before responding; no electricity, no internet, no computer, no email. Ditto a phone call: should I pick up? How long a conversation will it be? When will I have to call back? But - gloriously - my phone was turned off and across eight miles of water in my car. Oh! And the car! Should I drive or walk to the meeting? Can I turn left here? Am I speeding? Is that a cop? They seem trivial - and they are, for the most part - but the regulations that guide our public facade, the norms that guide our interactions with others, and the rules we impose on ourselves (have I watched too much tv today?) impact almost everything we do.

But not this last week. I didn't have to worry about who's watching when I swim - no one's around (and - as those of you who know me have guessed - swimwear is banished). I didn't worry about too much tv, the requirements cell phones and email insinuate into our lives. I didn't have to worry about what the check engine light on my car might harken (though I do now...). All I had to contemplate was the beauty of a sunset.

Rather than subject you to my further rantings, I'll supply those of a much more talented writer. Edward Abbey brings a touch more sarcasm and misanthropy, but the sense of freedom is roughly the same as he writes about rafting through the wilderness.

"My God! I'm thinking, what incredible shit we put up with most of our lives... the constant petty tyranny of automatic washers and automobiles and TV machines and telephones - ! ah Christ!, I'm thinking, at the same time that I'm waving goodbye to that hollering idiot on the shore, what intolerable garbage and what utterly useless crap we bury ourselves in day by day, while patiently enduring at the same time the creeping strangulation of the clean white collar and the rich but modest four-in-hand garrote!"

It's the "petty tyranny" that most catches my attention, and Abbey is wise to notice - in mid 60s at that - that the extent to which we come to depend on our appliances can rise to a certain despotism. This is not really my reaction - most things in moderation, most things in moderation - but I have to confess: only up there, only free from these day to day shackles, do I ever really let it go and do this:

Feels good.

Alex's Got a Gun

It turns out that very little has to happen before someone puts a deadly weapon in your hand. You would think - hope - that before someone hands you a Glock 9mm and fifty rounds of ammunition, they would give you fairly detailed information about how to use it without accidentally putting 9mm holes in yourself or others. As it happens? Not so much.

What actually happens when five spectacularly out of place graduate students go to a shooting range? First, a surly employee asks if we have a Groupon in a tone that suggests he already hates us for being rubes with a Groupon, and then we fill out forms saying we understand that this is dangerous and agree not so sue them for any reason whatsoever. We give them our drivers licenses. When asked if we've ever used a gun before, we all say either  "no" or "not a handgun" (which I think amounts to the same thing: "I don't have the faintest idea how to actually use what you're about to give me"). I detect a faint eye roll from the range employee.

He reaches under the counter and pulls up two Glock 9mm and two Smith & Wesson Sigma 9mm.

The first thing I notice is that they look heavy; they are, actually. These aren't trifling weapons. The former, for instance, is used by the New York City Police Department. Over the course of maybe ninety seconds, we are shown how to load bullets into a magazine, how to put the magazine into the gun, how to hold the gun, and how to pull the trigger. We are told that they won't give us any more advice or tips because it might eat into their lesson revenue. I'm not making that up, and I'll say it again: they refuse to go beyond this hideously brief introduction to machines that routinely - often accidentally - end people's lives, because they want me to need to take lessons from them later.

I am then handed four police issue weapons and 200 rounds of ammunition.

It's worth noting that the date is July 20, 2012. It's been about seventeen hours since James Holmes walked into a movie theater in Aurora, Colorado and killed twelve people (and maimed 58 others). One of his guns was a Glock 22, a handgun very similar to the one I now hold in my hand.

We'd made these reservations weeks before, and seriously considered canceling them and just taking the financial hit, but ultimately decided to go. We would have had Aurora on our minds, anyway, but it's made utterly inescapable by the two giant flatscreen TVs at the gun range, both tuned to 24 news discussing the attacks. It is, to say the least, heavy and surreal.

We walk across the room to the range officer (who, it seems, also already hates us). He tells us to keep the guns pointed down range at all times, where to clip the targets, to sweep up our spent shells when we're done, and he equips us with ear and eye protection. Which turns out to be exceedingly necessary. Guns are loud. No: really loud. If you haven't fired one - and I had fired a small bore rifle when I was about ten, but that was it - they're louder than you think. Even with ear protection that renders conversation almost impossible unless you're two feet away and staring directly at your conversational partner's mouth, the sound of a gun being fired hurts my ears. The "bang" kids use to simulate a gun when they're playing is woefully, desperately inadequate. It's louder than a firecracker, and it's only two feet away. But it isn't really until the guy next to use starts firing some serious caliber weapons that we finally come to acknowledge that you really are setting of a small bomb. In your hand. And that small bomb propels a piece of lead alloy up to several thousand feet per second.

This guy, by the way, unnerves us. He's wearing military-esque navy pants and matching shirt with combat boots. He has a pair of pistols: an enormous semi-automatic and a revolver with a truly concussive blast. You can see the flash from the bullet when he pulls the trigger, and it's over a foot in diameter. The pistols have a home in his police-style holster. All of this wouldn't be so alarming except his aim is truly terrible - considerably worse than ours and we just learned how to do this. We suspect he is not military at all. We keep an eye on him.

There is no way to use one of these without being keenly aware of how powerful it is, how deadly it is, and in our case this comes with what we later decide is a healthy dose of fear. I did not find it to be either pleasant, or exhilarating, but rather unnerving and anxiety producing. Each time I step up to the lane to fire off another magazine I think this time I'll be calmer, but each time I have to take a few breaths to keep my hands from quivering. Each time I finish my rounds, I feel relieved that nothing bad has happened. Each time I think this time I won't approach the gun like I would a coiled snake, but each time I do. Maybe this is a good thing, but it didn't make it very fun for me.

In fact, none of us classified it as particularly "fun." Nothing tragic happened; we went for pizza after, not to the ER like so many had to in Aurora. But we all felt unsettled, and I don't think it was because of the twelve victims who hadn't even been dead a full day. I just think firing a gun is unsettling. I doesn't relax me to walk up, carefully pick up a heavy metal object, pull a trigger, set off a small - but not THAT small - explosion in my hands and see what happens.

This isn't a post about gun control, it's really not. I, personally, favor much tighter restrictions on handguns and assault weapons, but I think everyone should go and do this. I think I would eat a lot less meat if I had to see an animal butchered every time I wanted a burger (much less if I had to go out back and kill a pig myself if I wanted bacon in the morning); I think this experience really cemented a lot about the gun control debate for me. Others will undoubtedly draw their own conclusions, but my two takeaways were this:

1) I would NOT feel safer with a gun in the house. I would feel considerably less safe and it would make me nervous all the time.

2) I feel a much deeper appreciation for the scary power a gun has, and the cavalier nature in which total amateurs (us) were allowed to use them at the shooting range convinced me there should be much tougher restrictions on how easy it is to get a hold of them.

But that might just be me. Go fire off some handguns at a range and see if you feel the same way. Just don't expect it to be fun, and definitely don't tell those guys we sent you.

Weekly Round-Up for July 20th

The week's links:

Richard Hasen says modern campaign corruption makes Nixon look like a nun (or something to that effect): Worse than Watergate

The final (I think?) installment of Slate's Constitution series: We the People of Slate ...

Breaking news, everyone, Michelle Bachmann is a raving loon:Bachmann’s Grotesque Attack on Clinton Aide Huma Abedin, Bachmann Hunts for Traitorous Muslims; McCain Shames Her, Michele Bachmann’s hateful cronies, Rubio condemns Bachmann, Why Bachmann’s witch hunt matters, Michele Bachmann under fire from Keith Ellison, John McCain, Bachmann defends her witch hunt

Virginia, seriously, calm down with this stuff: Another Abortion Showdown in Virginia

Also, come on, Arizona: What Arizona’s abortion ban means for Roe v. Wade

Some interesting stuff on marijuana this week: Obama’s pot problem, If Pot Were Truly Legal, Joints Would Cost Only a Few Cents

From the Chronicle: Federal Student-Visa Program Is Vulnerable to Fraud, Report Says

The Anti Penn State Scandal

From a friend of the blog, an antidote to the continuing horror at Penn State: Caltech has self-reported that not all of it's athletes were taking full course loads at the time of competition. They have voluntarily vacated, to pick one example, all of the wins their baseball team had during a time they went 0-112, and all the Ws from water polo's 0-66 run. I am not making this up.


It's mens basketball win over Occidental will stand.



















More coverage at the LA Times: Bill Plaschke: No pi on Caltech's face for NCAA probation. - Los Angeles Times

Count to 45

The Penn State tragedy is the biggest scandal in the history of college sports. I exaggerate sometimes; it runs in the family. Sometimes a story needs just a little touch-up, a little embellishment to catch in your audience. The reason I want you to know I'm aware of this is so I can tell you I'm dead serious.

The Penn State tragedy is the biggest scandal in the history of college sports, and it's not even close. 

Some numbers to try on for size:

45: the number of felonious sexual assaults for which Jerry Sandusky was convicted. Try counting all the way to 45 knowing that each number represents the horrific rape of a child. I bet you don't make it. Maybe you can make it to:

8: the number of children whose lives were torn open by those 45 crimes. 

4: the (minimum) number of senior University officials who knew about Sandusky's pestilent predilections. President Spanier, VP Schultz, AD Curley and CEO Pope Don Coach Paterno. These four men knew - knew that Sandusky was raping children - and did nothing. Well, nothing but actively cover it up as it continued to happen. 

14: the number of years those men knew about those crimes but kept silent as the horror continued. 

The president of a University stayed silent for fourteen years to cover up the unspeakable acts of a former football coach. Even as I type it I can barely believe it's true. The depth of institutional failure is horrifying, mind-numbing. The so-called "Culture of Reverence" for the football team at State College insulated a child rapist from the law for almost a decade and a half. Joe Paterno built a legend on the idea that you could win with integrity; the Grand Experiment was premised on the notion that you could carry yourselves on and off the field as true student-athletes, and that you would burnish - not tarnish - your school and its academic standards through deeds on the gridiron. 

It sounds like a sick joke, now; now that we know Joe Paterno - the most powerful man at Penn State, to be sure - knew that his colleague was involved in the serial rape of children from at least 1998 to the day he died, and lied about it to all of us. As alum Michael Weinreb wrote over at Grantland, "the Grand Experiment is a failure, and the entire laboratory is contaminated, and there is no choice to go back and start all over again. 

So I'm joining the throng of writers urging Penn State to suspend its football program. Shut it down. Turn off the lights. Pull back the culture of reverence that enabled this whole disaster. 

I know the counterarguments: shuttering Penn State football will do nothing to punish the four men who participated in this grotesque cover-up. They all lost their jobs, one's dead, and the other three are facing criminal charges (or will soon). Shutting down football doesn't hurt them, it hurts the current players, current students, and current administrators who didn't do anything wrong. 

I can hear some of you saying right now, "those students didn't do anything wrong, and suspending football will not only deprive them of the entertainment, but of the astronomical publicity, prestige and cash that it brings in." And you're right, turning off Nittany Lion football would be a crushing blow to the institution, but that's the whole problem. When eliminating a football team is the biggest single blow you can aim at an institution, the football team is plain and simply too damn important. It's that level of institutional dependence on a sport that led four allegedly upstanding members of the Penn State community to prioritize it over the lives of children.

Which, by the way, is why we're kidding ourselves when we say this was a one off thing that couldn't have happened anywhere else. I like to think that at schools like Texas, Florida, Alabama, Nebraska, USC, Oklahoma, LSU, Ohio State, and my beloved Michigan someone would have blown the whistle and reported Sandusky's crimes, instead of doing what Penn State did - take away his key to the locker room showers. But at each of those schools, football is God. The Michigan Winged Helmet is the most important and visible symbol of the university, Alabama's Crimson Tide is its lifeblood. Sports - football, at any rate - has taken over educational institutions and occasionally become the most important thing about them, and now we see what terrible moral havoc that can wreak. 

Count to 45. 

When an institution like a football team becomes that important and causes this kind of damage, you need to start over. You can't continue to protect the team that these men protected by hiding another's heinous deeds from the world. Start over. Tear it down and start over. 

I hope the new leadership at Penn State does the right thing. They'll be booed on the road; I'm terrified of the signs opposing fans will hold up at those games; every football Saturday will be occasion to wonder how Penn State is righting its wrongs (and to talk about the legion of civil suits against PSU that will take years to finish). They should take the high road and pre-empt others' condemnation by condemning themselves and drawing the curtains on the football team. So far? They've decided to keep Paterno's statue up and to remodel the locker rooms that served as the scene of the crimes. 

Do better. 

If they don't, I hope the NCAA does. The NCAA is a hypocritical, sanctimonious, exploitative farce, but they have to get this one right. They banned USC from the post-season for two years and took away 20 scholarships because the school failed to properly monitor its team. They suspended five players and took scholarships away from Ohio State because its coach lied about the memorabilia his players exchanged for tattoos. Almost 30 years ago they gave Southern Methodist the "death penalty" - two year suspension of the entire football program - because of a scandal involving cash payments to players - and the participation of the school's President and Chairman of the Board of Governors. 

The term of art for violations like these? "Loss of institutional control." Is there a more clear cut case of "loss of institutional control" than a school's President, Vice President, AD, and beloved football coach covering up multiple instances of child rape to protect the football program? If "loss of institutional control" doesn't mean that, then it doesn't mean a damn thing. 

There isn't going to be an easy way for Penn State to do this. There isn't a way that won't punish some of the innocent students and players. I know the "proper" solution is one on which reasonable people disagree, and maybe you think shutting down the program for a year or two is too harsh. If you do: 

Try counting all the way to 45 knowing that each number represents the horrific rape of a child. I bet you don't make it.

Weekly Round-Up for July 13th

If you're looking for more reasons to feel an overwhelming sense of loss and despair, the Freeh Report on Penn State's scandal ought to do it. 

If you don't believe me, John Culhane says Penn State could learn from the BP oil spill. That is never a good sign...

The Chronicle of Higher Ed weighs in on the "culture of reverence" that contributed to the harrowing mess. 

In fact, here: a link to ALL the Chronicle's coverage on Penn State.

Ta-Nehisi Coates has something to say about it too. 

Dahlia Lithwick wonders why liberals don't show the kind of outrage that's been directed at John Roberts when their justices jump the wagon. 

And let's not forget that the Court said it won't take another look at Citizens United.

Katy Waldman reminds us that, by the way, it's okay to be "wobbly" every once in a while (again, like John Roberts). 

And the leaks from within the Court about the ACA aren't anything new, either. 

But while we're wondering, was it Ginni Thomas who blabbed?

When Andrew Leonard's house burned down, the firefighters came, and now he understands why taxes are important. True story. 

And the CBO says we aren't being overtaxed, so calm down. 

This one is FASCINATING: should people who fly drones from a military base get medals for bravery?

AA for Effort: This Lawsuit is More Masturbatory Than Most

Rooks has never done a guest post for someone else before, so this was fun, if probably longer than Alex was expecting!  This post and other sexytimes law ruminations can be found at Between the Briefs, and she also corrals a herd of awesomeness over at Res Ipsa Etc., where she hopes to get Alex to return the guest post favor sooner rather than later.

Today's moment of deep-seated appreciation for all the delightful readers and content aggregators out there in the series of tubes interwilderness is brought to you by my unceasing delight in waking up to emails of links like the following:

Lawsuit vs. school cites masturbation assignment

YES!  I mean, probably, "Oh no," but I'm still excited, perhaps perversely, about such apt sex law fodder, not to mention someone asking me if I have thoughts - specifically regarding whether the elective nature of the course matters, and on the issue of alternative assignments.  Yes, I sure as hell do have the thoughts!  Of course I do!  Many of them.  After all, basically all I do at Between the Briefs is think about sex (ok, and occasionally the law as well).

In brief, for all you TL,DR readers out there, I don't think it constitutes sexual harassment.  I can understand how the elective nature of the course might matter in that assessment.  And while the refusal of an alternative assignment makes a certain degree of sense to me, I do actually think the assignment itself is odd (though not for the reasons elucidated in the article linked above).

A Short Summation: 

Karen Royce, a returning student seeking to become a social worker, took a human sexuality course from Prof. Tom Kubistant, one in which he required the signing of a waiver due to the explicitly sexual subject matter covered during the course on the very first day of class.  Basically, the waiver acknowledged that the students in question were aware of the nature and requirements of the class, which is to say they knew what the hell they were getting into, as it were.  Royce went ahead and signed her waiver without reading it - rookie mistake, kids! - and then was appalled, appalled, to discover that the professor really did require "his students to masturbate, keep sex journals and write a term paper detailing their sexual histories in order to receive a passing grade."  Go fig.  Royce simply couldn't believe that a human sexuality course would ask students "to list different types of sex and sexual positions," or that Kubistant would "read the lists aloud to the class and then [ask] the students to write three 250-word journal entries about their sexual thoughts for homework," much less, "assign a 14-page term paper which required students to detail sexual exploration, abuse - including rape - virginity loss, cheating, fetishes and orgasms, among other things."  THE HORROR.

Royce dropped the class after four meetings, but she was so generally wigged the hell out and concerned for the poor, poor children - who, by the way, seem to unambiguously support the professor, who's quite popular at the college - that she initiated an investigation at the university, alleging sexual harassment.  The investigator reviewed the syllabus and spoke to folks, and found that there were no shenanigans going on.  Royce then addressed her concerns to the U.S. Department of Education’s Office for Civil Rights, who subsequently agreed with the school that there were still no shenanigans going on.  Now Royce is appealing her indignation to the U.S. District Court of Nevada, again asserting that Kubistant's assignments invaded her privacy and were tantamount to educationally sanctioned sexual harassment.

But is she right?

Well, no.  Sexual harassment in schools is ruled by Office of Civil Rights sexual harassment guidelines under Title IX, not the EEOC guidelines, namely, as my sexformant rightly points out, "Whether the harassment rises to a level that it denies or limits a student's ability to participate in or benefit from the school's program based on sex."  So, there's a reasonable amount to parse in that seemingly simple statement.  Can the student not participate in the school's program?  If not, is this inability based on "sex" as understood under Title IX?  The school is clearly aware of the goings-on in Kubistant's class, but the course itself is one of several options to fulfill the degree requirement in question in Royce's case.  Not looking great for Royce.  If the assignment were sexual harassment, one could certainly argue that it would be illegal in that it's quid pro quo -

"The type of harassment traditionally referred to as quid pro quo harassment occurs if a teacher or other employee conditions an educational decision or benefit on the student's submission to unwelcome sexual conduct.  Whether the student resists and suffers the threatened harm or submits and avoids the threatened harm, the student has been treated differently, or the student's ability to participate in or benefit from the school's program has been denied or limited, on the basis of sex in violation of the Title IX regulations."

- namely, a shitty grade.  But clearly OCR doesn't think so, and they are the folks in charge, dammit.  Even if we won't just take their word on it, the inference that the alleged victim needs to loosen the hell up, if that's what happened and depending on precisely how it was phrased and the context of the pedagogical methodology of the course structure, could possibly rise to that level, but that's a statement, not the assignment itself.  It certainly doesn't seem like such things were said so frequently re: Royce to meet the requirements of hostile environment - especially not in what basically amounts to 1-2 weeks worth of class, depending on the frequency of the meetings, and super especially if there's a reasonable inference that Royce arguably invited the reply by publicly commenting on her own masturbation habits first, after having signed the waiver.

Beyond that, neither the statement nor the assignment constitutes an offensive remark about someone's sex (embodied gender), nor an unwanted advance, request for a sexual favor or other harassment of a sexual bent.  Like I said already, I don't believe that the lack of alternative constitutes severe and pervasive, which is, I think, the other thing the school is getting at by harping on the elective nature of the course in the first linked article - it's certainly not the only elective for that requirement, so it's not pervasive, and giving someone a failing grade if they refuse to do required work isn't, in and of itself, severe. (I'll come back to whether I think the refusal of an alternative is odd.)

Does it matter?

As a teacher myself, it's perhaps a bit more . . . complicated.  I understand the purpose of the assignments detailed, and frankly, knowing that Royce wants to be a social worker makes it seem like even more of a good idea.  (The notion of a social worker who's easily offended and rather a bit judgy about sex is frankly disturbing to me.)  The fact that it's required without alternative assignment can be tough, I realize, but it's likely for a good cause.  I know that, when I was teaching human sexuality, we required the wee kiddles (ages 17-25, so not actually very wee) to read and watch what some might call pornography, and occasionally people would ask if they could do something else instead.  That answer was, inevitably, "no."  The point was not to agree with the instructors, but to expose oneself to and potentially confront ideas and notions one may not have engaged before, and students don't do that by getting out of anything that they simply don't care to engage, for whatever reason.  That's not the point of, you know, education.

In order to ensure a minimum of fuss (similar to this scenario, but without a written waiver), we would announce at the beginning of the course that the readings and viewings on the syllabus were required, and if a student didn't want to participate in them, they could drop the class.  This disclaimer was direct and, though simple in outcome, elaborate (in some ways) in explanation - we'd go over what was in each of the potentially problematic assignments and say, "this is what this is about, these are the sorts of sexual expressions you might read about, and if you can't handle that, and handle engaging in a respectful discourse about that, then this isn't the course for you."  Seriously, it was like a dramatic reading of a syllabus.  (Very meta.)  As such, and with the caveat of my own background firmly in place, allowing no alternatives makes complete sense to me, pedagogically. (Additionally, to be in Title IX compliance, schools must not "treat one student differently from another in determining whether the student satisfies any requirement or condition for the provision of any aid, benefit, or service."  So it seems as if an alternative assignment could potentially get someone in even hotter water.)

Regardless, assigning masturbation, given the academic climate I reference below, not to mention the cultural one, is bold, yo.  Beyond an admiration for the professor's pluck, however, I'm not sure how I feel about a mandated sexual act - like, if the student were legitimately asexual, what then?  Positioning oneself in an authoritative stance and subsequently telling someone clearly subordinate within that power structure  - teacher/student - what to do with their body, even if that thing would likely be a very good idea or at the very least really rather educational, smacks of the sort of patriarchal control over the sexuality of others that many scholars frequently find problematic.  Conversely, of course, there's absolutely something to be said for expanding the discourse on sexual expression at the most basic, personal level, especially in a class where one must be able to effectively communicate about sex in fairly public fora in order to grasp and engage the concepts being discussed.  It's a toughie.  To my mind, the better assignment might be to have them document and journal about how they express or don't express themselves as sexual beings (be it masturbation, or looking at cute people, or engaging in fetishistic behavior re: clothing choice, or fucking somebody, etc.), and to contemplate why that is, to critically engage what that might mean, rather than instruct them to touch themselves more and write about it, finis.

The "draw your orgasm" assignment is, in some ways, just as potentially exclusionary, especially on a college campus - depending on how it's crafted, it quite possibly invisibilizes anorgasmia, which has been documented repeatedly as an extremely common phenomena for younger ciswoman types (I dunno if anyone's done a study on anorgasmia in young trans populations, but I'd be keen to read it, if so) though it does also occur in other demographic groups as well.  As such, the homework, perhaps inadvertently but nonetheless, creates an assumption of normality in the ability to orgasm that is frankly unreasonable given the population stats of college campuses (not to mention that, in my personal experience, many introductory level human sexuality courses tend to have predominately woman-identified students).

On the other hand, I think it would be fascinating and potentially illustrative (pun extremely intended) to have folks draw/describe what they think orgasms should or do look or feel like, especially if partnered with some sort of reading about the topic with additional historical and/or cultural significance - like, say, excerpts from Nancy Friday or Betty Dodson, perhaps in addition to works with a more specifically medical bent, like The Science of Orgasm, or The G-spot (if you wanna go old school and/or historical with it).  That could potentially contextualize the conversation in an intersectional discussion of how sexual questions tend to span cultural/social/medical/ethical/moral/historical/legal/political/theoretical (phew!) fields, dare I say spheres, of influence.  Further, a professor might then explore how our understanding of something as seemingly concrete and specific as "orgasm" is bound within these particular understandings, yet drawn in these situational nibbles and bites from all of them, and thus examine the extent to which the study of sex, whether currently or historically, probably ought to do likewise in order to even begin to grasp the near-infinite complexity surrounding what's often thought of as an extremely concrete act.  (Actually, should I ever get to make my own syllabus, I'm totally doing an orgasm week.  Or hell, even beyond that, it would be more than a little awesome to structure a syllabus on the commonly elucidated stages of arousal and excitement and whatnot.)

I do think, on a personal level, as an instructor I might feel a bit . . . odd reading sexual case studies of my students - in no small part because the pressure to avoid even a whiff of inappropriate conduct is, in my observed experience, even higher for those teaching in arguably transgressive fields.  It's sometimes hard to disengage oneself from that clearly messed up narrative.  Naturally, it's possible that anonymous submission might address that concern (though frankly, with some students it might not be hard to guess, and that barrier is broken, potentially, when it's time to input grades).

The presumption that it's inappropriate, however, is likely more troublesome to me than the potential, err, inappropriateness of these assignments themselves. That idea works on the notion that reading about someone else's sex life must necessarily be prurient, and that's a notion that has been getting in the way of funding for sexual research and less abashed scholastic exploration of sexual topics for decades now, not to mention the perception of the credibility of those who chose to do academic work in human sexuality in a variety of fields (to wit, the narrative I mentioned earlier).  At least one of the above articles (the NY Daily News one) falls into precisely this trap, discussing the teacher as if his assignments are freakishly pervy! Terribly licentious!  Filthy, filthy nastiness of epic proportions!  Royce's lawyer encourages these histrionics, stating, "My mind immediately went to the question is he grooming these young 17-, 18-, 19-year-olds so he can have further contact with them outside the school environment?"  Tell you what, dude, if that's where you're mind goes first, what I don't want is you teaching kids - I'll gladly roll the dice on the beleaguered and well reviewed professor.

If we're being honest, though, I think the worst bit of prospectively reading the sexual history of a student is ridiculously evident - the writing.  Anyone who's read the work of the average college student can tell you that that business is not infrequently dishearteningly abysmal.  I mean sure, given a deadline and Wikipedia, most of the kids could probably pop out a particularly porny chapter of Fifty Shades of Grey, but this is supposed to be a more clinical history, if I'm understanding the assignment correctly.  In my head, it would be like a Harlequin romance novel had a poorly punctuated one night stand with a particularly dry chapter of The Kinsey Report, resulting in a painfully mediocre lovechild . . . as written by an undergraduate.  Can you imagine having to read 75-150 fourteen page papers of that?  (Plus the journals and all the rest?)  It's positively shudder inducing.  I want to be clear, here - I don't discount the potential interest and variability of the sex lives of the younger set; I simply don't have much faith in their ability to cohesively and effectively communicate same.  If anything we should probably thank Kubistant for taking one for the team, but we'll have to settle for hoping the escalating suits against him (and the hearteningly supportive administration) come to naught in the end.