States' Rights, and Wrongs

June 19, 2009
Posted by Jay Livingston

The Supreme Court decision in Osborne yesterday allows a state to prevent a convicted person from re-examining evidence using modern DNA testing, even though such testing might prove innocence.

That’s bad enough – especially for people who have been wrongfully convicted and who might be exonerated. But my guess is that the conservative majority has bigger things in mind – rolling back incorporation.

Incorporation is the theory that the Warren Court used to prevent states from violating individual rights. The language of the Bill of Rights clearly protects people against actions by the federal government. “Congress shall make no law . . . ” But it says nothing specifically about what state governments may do. The Fourteenth Amendment, like the other two Civil War amendments imposes limitations on the states. No slavery, no denial of the vote. The Fourteenth requires states to follow “due process” in criminal cases.

The trouble was that what state courts considered due process varied widely. In Mississippi, beating defendants till they confessed and then using that confession to convict them was not a violation of due process.

Beginning in the 1960s, the Court handed down some landmark decisions saying basically that certain due process rights which already existed at the federal level (a free lawyer, the exclusion of illegally seized evidence, etc.) were incorporated on the states via the due process clause of the Fourteenth Amendment.

The conservatives seem to want to restrict these protections and return the definition of due process to the states. As Chief Justice Roberts wrote in his opinion.

This approach would take the development of rules and procedures in this area out of the hands of legislatures and state courts shaping policy in a focused manner and turn it over to federal courts applying the broad parameters of the Due Process Clause. There is no reason to constitutionalize the issue in this way.

“No reason to constitutionalize.” There is a reason, actually – making sure that a state is not locking up (or executing) an innocent person. But that’s a small price to pay for taking one small step in rolling back the constitutionalizing protections of the Court’s more liberal period. Of course, when it comes to state practices the conservatives don’t like (restricting guns, allowing abortions and assisted suicide, counting Democratic votes), I doubt that we’ll hear much from them about the evils of constitutionalizing and incorporation.

None of the legal blogs have mentioned incorporation (at least not the two I looked at). So what I’m saying is either so wrong or so obvious that it isn’t worth noting.

Folkways and Laws

June 17, 2009
Posted by Jay Livingston

Stateways cannot change folkways. Or can they?

Henry at Crooked Timber, who has apparently spent some time in the pubs of Ireland, says he never expected the Irish to obey the new anti-smoking law. But they did. Henry’s explanation is not that he underestimated the power of the law but that he overestimated the strength of the norms:

prevailing norms (that Irish people can smoke in pubs to their hearts’ content, and that others will just have to put up with it) were much more fragile than they appeared to be

In France too, and Italy, many people were sure that smokers would ignore new restrictions on indoor smoking, but the bans in those countries have been surprisingly effective.

The crucial point is not that social scientists misread the norms but that the smokers on the ground did. It’s a case of “pluralistic ignorance,” a phrase coined by Floyd Allport in the early 20th century to describe this misreading. Most people have doubts about the norm (in this case, the norm that smoking is O.K.), but each thinks that others support it, so each person publicly states support for the norm and keeps his doubts to himself, which only leads everyone to further misread just how weak the norm really is.

Attribution theory has a related explanation. When we see someone behave in a certain way, we are quick to attribute a whole set of motives and characteristics to the person. If someone is smoking, it must be because he wants to. He is a smoker. On top of that, if we see nonsmokers in a pub where there is smoking, and they are not objecting, we conclude that they have no objections. In both cases, we are using our observations of behavior to make simplistic assumptions about what’s in the minds of the people we observe.

If we thought about it for a couple of seconds, we’d realize that most people who smoke feel at least ambivalent about smoking. They’d like to quit and have probably tried to more than once. A ban on smoking indoors gives them one more external push to do what they want to do anyway.

Something similar happened when New York City passed a “pooper scooper” law thirty years ago. By the late 1970s in New York City, dog droppings in the public areas of the city – the parks, streets, and sidewalks – had reached a level that many people found disgusting. It was a shitty version of the tragedy of the commons. Each individual acted out of self-interest (walking away was more pleasant than scooping up the poop) with a result that made the city less pleasant for all.

Many people thought the new law would have no effect. They were applying a rational, economic analysis. True, there was a fine for not cleaning up. But the city had much heavier fines for running red lights, and still many New York drivers continued to treat stop lights more as a suggestion than as a command. Besides, it was very unlikely that a cop would be around at the precise moment a dog owner walked away leaving the incriminating evidence. The law was all but unenforceable. How could anyone seriously expect New Yorkers, of all people, to cooperate?


But much to the surprise of most people, including New Yorkers themselves, the law worked. Dog owners did clean up, even though they could easily have gotten away with violating the new law. But why? Here’s my guess: Even before the new law, dog owners had probably thought that cleaning up after their dogs was the right thing to do, but since everyone else was leaving the stuff on the sidewalk, nobody wanted to be the only schmuck in New York to be picking up dog shit. In the same way that the no-smoking laws worked because smokers wanted to quit, the dog law in New York worked because dog owners really did agree that they should be cleaning up after their dogs. But prior to the law, none of them would speak or act on that idea.

So it looks as though stateways can indeed change folkways, at least when the folks want to change.

Oceane Tide Rising and Falling

June 12, 2009
Posted by Jay Livingston

In the previous post on names, I said that the rapid rise and fall of Oceane in France paralleled the career of Madison in the US. But Madison is still hanging in there, still in the top 5, having descended only one or two places in the rankings. A better example might be Hannah (though Oceane doesn’t have Hannah’s history), or Ashley in the late 20th century.

(Click on the graph to see a larger version.)

Still, both these American names were less volatile than Oceane in France. In a single decade (1991-2000) the number of Oceanes increased by a factor of six. Six years later, it had fallen nearly by half.
(US graphs are from babynamewizard. More data on French names here.)

It's How You Finish

June 11, 2009
Posted by Jay Livingston

Flaneuse at Graphic Sociology reprints a neat graph by Baptiste Coulmont showing trends in the endings of girls' names in France.

(Click on the graph to see a larger version.)

The final “e” has long been characteristic of French female names, though with some variation (the “ette” suffix is so 1930s). The most remarkable trend in recent decades is the rise of the final “a” to the point that it is now more common than the final “e.” The three top names in 2006 (the most recent year I could find data for), were Emma, Lea, and Clara. (I also noted that Oceane has now dropped out of the top ten. Apparently, in terms of fashion cycles, Oceane is to France what Madison is to the US.)

Final letters of boys’ names in the US have also seen a dramatic shift, as documented nearly two years ago by Laura Wattenberg at babynamewizard. The half century from 1906 to 1956 saw little change. D,E, S, N, and Y shared the closing spotlight, probably thanks to David, George, and James/Charles/Thomas, John and several Y names.

Final Letter of Boys' Names 1906

Final Letter of Boys' Names 1956

But by 2006, N had conquered the field and stood pretty much alone.

Final Letter of Boys' Names 2006

It won not by having a single blockbuster – only one of the top ten boys’ names, Ethan, had a final N – but with more of a long-tail effect. Of the names ranked 14th to 27th, nine of the fourteen ended in N. (The list is here).