Sunday, January 29, 2006

Cognitive Reflection and its Gender/Sex/Sexuality Dimensions

A colleague of mine, Taggert [blogauthor of A Random Walk] passed over a paper by Shane Frederick titled "Cognitive Reflection and Decision Making" published in the Journal of Economic Perspectives.

This paper explored the relationship between the results of a very simple three-question test, the "Cognitive Reflection Test" or CRT and other types of decision making.

Consider the following three questions:

1. A bat and a ball cost $1.10 in total. The bat costs $1.00 more than the ball. How much does the ball cost? _____ cents

2. If it takes 5 machines 5 minutes to make 5 widgets, how long would it take 100 machines to make 100 widgets? _____ minutes

3. In a lake, there is a patch of lily pads. Every day, the patch doubles in size. If it takes 48 days for the patch to cover the entire lake, how long would it take for the patch to cover half of the lake? _____ days

While how one does on the test is interesting, what is more interesting is what your performance on this test says about the rest of you and your decision-making processes.

As it turns out, if you got 3/3 on this exam, you were much more likely to:

prefer to have $3800 next month to $3400 this month

In other words, those scoring higher on the CRT were "generally more 'patient'; their decisions implied lower discount rates. For short term choices between monetary rewards, the high CRT group was much more inclined to choose the later larger reward."

Additionally, high CRT scorers, are much more willing to accept risk. For example, if you scored 3/3 you are much more likely to take a chance when offered this tradeoff: $1,000 for sure or a 90% chance of $5,000. . . Or even $100 for sure or a 50% chance of $300.

The score you get on these three simple questions is positively and significantly related to a whole host of personality and intelligence tests, including both the SAT and the ACT.

Okay, so while all of this was interesting enough, it got even more interesting when the author showed significant sex differences in the CRT:
Men scored significantly higher than women on the CRT.

On average, men got 1.47 while women got 1.02.

And even more interesting:

Four facts are noteworthy. First CRT scores are more highly correlated with time preferences for women than for men. . . Second. . . women were considerably more risk averse than men. . . Third, for the selected risk items, CRT is as important as sex. In other words, high-scoring women behave almost identically to low-scoring men. . . Fourth, in contrast to the pattern observed for the time preference items, CRT scores are more highly correlated with risk preferences for men than for women.

Given all of the efforts to find a "gay gene" that have showed that lesbian women are similar in significant ways to the heterosexual male, I am wondering if such similarities would show up with the CRT and the correlations made here.

JPOD Weeks 5 and 6

Okay, so I'm a negligent daily picture poster.


I'll try to post weekly updates of the JPOD. I guess then, technically, it should be called "JPOW", but JPOD is so. . . Well, so current, you know? If not realistic.

He turned seven weeks last friday so here are pictures from weeks 5 & 6!

Saturday, January 28, 2006

This Little Piggy: An Economic Parable?

We're up for our (tonight only!) mid-night feeding (it is 4:00 am central time - he slept for 7 hours straight last night!) and I am playing "this little piggy" with him to get him to wake up enough to drink his bottle.

The first two toes describe Gary Becker's theory of the household with the big toe symbolizing the "man" going to market or entering the for-wage workforce while the second, smaller, less useful and more frail (in Becker's perception) is better suited to the household ("this little piggy stays home").

The second two toes give us a Marxist bourgeoise/proletariate tension with one toe getting roast beef, while the other has none.

The last little piggy leaves me stumped. Why did it "WEEE WEEE WEEE" all the way home?

Is it just in reaction to the dismal science? Or is it more a Darwinian, survival of the fittest sort of fable?

Friday, January 27, 2006

The Magical Five S's

Our friends Stef and Peg have, ultimately, saved our lives. Here's a public "thank you!" to you!

They gave us a book, a couple of summers ago, long before our beloved ZeYo was even in the womb, titled The Happiest Baby on the Block by Harvey Karp, M.D.

It should be titled "How to get a colicky baby to stop his/her incessant, unconsolable crying."

We, literally, would never have found the book.

I also owe a great deal of debt and gratitude to the lovely BioMom for being her empirically-minded self.

So, on our about week four, we started to experience a few long nights with ZeYo. He would cry, unconsolably.

Being the experimenting researchers that we are, we tried everying, ceteris paribus, hoping to find the magic bullet.

I was unwilling to admit that he actually had collic. I was living with my brother when his second son was born and that kid would scream for hours. ZeYo, in contrast, had only screamed for two hours at a time and I, anxious to avoid any particular label, would insist that this had occured only once.

What was troubling was that we literally could not find a cause or a pattern or a reliable solution.

Maybe out of sleep deprivation, maybe out of a slight depression for having to go back to work, maybe just out of laziness, I chose to plod on, ignoring any (more) practical advice. Including said book, through which I had skimmed, focusing on just the first chapter, which I found to be obvious: Of course we should swadle, put him on his side or stomach, "shush" him, swing him and then let him suckle.

Duh. Plus, it just wasn't working

BioMom, on the other hand, started diligently plodding through until she found descriptions which seemed to match our young man's jeckyl/hyde-like behavior as the sun would fall:

Considering how exciting the world is, it's a wonder that all babies don't get overstimulated! Fortunately, most are great at shutting out the world when they need to. However, if your baby has poor state control, even a low activity levle may push him into frantic crying. He may begin to sob because of a tiny upset, like a burp or a loud nocie, but then get so wound up - by his own yelling - that he's soon raging out of control. These babies cry because they get overstimulated and then stuck in "cry mode." If we could translate their shrieks into English we'd here something like " Please. . . help me. . . the world is too big!"

This sparked an interest, so she read on until finding this:

Many of our ideas about what babies need are based on a misunderstanding about their fragility. Of course, babies are quite fragile in many ways. they choke very easily and have weak immune systems. For this reason, being told to do anything vigorously may seem as counterintuitive to you as being told that adding a slimy, raw egg to a cake will make it delicious. . . yet, it's every bit as true!

That's because, in many other ways, your newborn is a tough little "cave" baby. He can snooze at the noisiest parties and scream at the top of his lungs much longer than you or I could. Parents are often amazed at how forcefully nurses handle babies when they bathe and burp them. . . .

Parents often mistakenly believe that their job is to lead their unhappy baby into calmness by responding to his wails with soft whispers and gentle rocking. While that's a very reasonable, civilized approach, it rarely calms an infant in the middle of a meltdown. . . . .

Experienced baby "wranglers" know the more frantically a baby is crying the tighter his swaddling, the louder the shushing, and the more jiggly the swinging must be, or else, it simply won't work.

That night, we howled at each other in our attempts at "vigorousness" with ZeYo's incessant screaming.

I will attempt to describe what I saw in the lovely BioMom:

ZeYo, wrapped up tightly like a little burrito.

BioMom hugging him tightly to her as if trying to burp him, and, while on a rocker, violently tipping it back and forth while pounding his back and saying very loudly:


As weird as it was, it seems to have worked. The first night he cried for 45 minutes while undergoing our vigorous intervention. Second night 30 minutes and tonight less than 15 minutes.


Wednesday, January 25, 2006

Mind the Gap

There is an interesting discussion on one of my research interests, the wage gap between men and women, over at Echidne of the Snakes.

See this post, this post, and this post, for her series.

In the third post, she sites a dissapointingly one-sided definition in Wikipedia.

My feminist economist listserve has been notified. Let democracy reign!

Tuesday, January 24, 2006

Rule of Thumb: The Kindergarten Teacher Doesn't Email With Good News

This correspondence just in:


FYI, [FYO] decided to cut her tights today during art, not really sure why. I told her they were expensive and that maybe she would have to buy her next pair on her own. a little fear never hurt anyone.

[Kindergarten Teacher]

Thanks for letting us know! Wow. How did she explain it to you? I mean, what did she say she was doing?

I wonder if she's still acting out because of [ZeYo]?

In any case, we are starting to employ the use of "Grandma's money" (the little $1 gifts she gets in cards from grandma) when she breaks something that is not hers. Especially if it seems purposeful.

Thanks again,



I actually caught her in the act, red handed if you will. So I just asked her what she was doing and she told me. It did seem really weird though, and she didn't understand that they cost money. But I can tell you now that she knows that they are not cheap!

All Smiles and Frowns

Today I am all frowns. It is my first day back at work since ZeYo came into the world.

ZeYo on the other hand, is all smiles. BioMom reported three responsive smiles before his facial mucles got tired.

Friday, January 20, 2006

Friday Family Fun Night

So, tonight we told the FYO that she could decide what we do for FFFN.

She immediately said that she wanted to watch a movie. . . Without [ZeYo].

What will we do with [ZeYo]?

Get a babysitter?

Wednesday, January 18, 2006


Monday, January 16, 2006

The Fifth Week

ZeYo is in his fifth week on this planet!

He is starting to imitate us a bit, sticking out his tongue and still vague and impassive staring. Once in a while we think we get a smile out of him, but it is usually followed by flatulence.

We think we've found the remedy for "Diablo": the mid evening nap. Rather than keep him up, expecting that that will help him sleep later, we've finally figured out that that just riles him up and makes it harder for him to fall into a deep sleep.

Tonight he gobbled six ounces. Can we hope for an hour per ounce?


The FYO continues to be challenged by our new addition.

Its funny, everyone said that the age difference was "just perfect" and that she'd be a "big help."

While in theory I think the age difference is great, that we gave the FYO many years of undivided attention, blah blah blah, I think that her age makes her just old enough to understand and not quite old enough to handle it maturely.

This past weekend we headed to a sunny southern state to soak up some heat and some help from the grandparents. BioMom and I are now fully rejuvinated and ready to take on parenting once again. But I continued to be shocked at the acrobatics the FYO put herself through at any sign of attention paid to ZeYo. It was, actually, shocking. This afternoon, while on our way out the door, she had actually fit herself into the travel "bucket" that babies use while travel in automobiles.


I know that somewhere in her heart of hearts she knows she's being ridic, she just doesn't know what to do about her feelings yet.

Anyway, in reference to the title of the blog, the FYO displayed today a notable ability to put her own personal preferences regarding quality aside for her own desires for quantity.

I write this again, in both adimiration and shock.

Grandma (formerly called Gaga by FYO) decided to take us out for sandwiches and malts, given it was our last day in non-arctic conditions. In the lead-up negotiations, we were deciding on two malts for BioMom, Gaga and the FYO (I stayed out of it, opting for the cone instead). The FYO, naturally, was angling for her own, personal malt, but BioMom and Gaga were persistent about there being only two malts ordered for the three of them to share.

Some background: Chocolate malts are strictly preferred over vanilla malts and vanilla malts are strictly preferred over all other malts. This preference structure is strongly enjoyed by all.

So, what kind of malt do you want, [FYO]?


This logic was so completely counterintuitive to me that it took me a while to figure it out. She ordered the known less-preferred flavor in hopes that as a result she would acquire greater quantity.

This is just the sort of problem I am about to teach in intermediate microeconomics. Neoclassical theory would have us believing she is irrational. Why would her preference structure change from chocolate > vanilla > all other to vanilla > chocolate depending on a) the number of people ordering and/or the number of malts being ordered?

This is one of those places where Neoclassical theory falls short and where game theory comes in handy. It is not unlike the fictional example presented in the movie A Beautiful Mind where John Nash suggests that none of his buddies go for the (preferred) blonde in the bar in order to make sure that they all have a date (with a less preferred brunette) at the end of the night.


Covering: The New Civil Rights Agenda

Check out this article by Kenji Yoshino from Sunday's New York Times. I found it thoughtful and fascinating, if optimistic.


January 15, 2006
The Pressure to Cover
When I began teaching at Yale Law School in 1998, a friend spoke to me frankly. "You'll have a better chance at tenure," he said, "if you're a homosexual professional than if you're a professional homosexual." Out of the closet for six years at the time, I knew what he meant. To be a "homosexual professional" was to be a professor of constitutional law who "happened" to be gay. To be a "professional homosexual" was to be a gay professor who made gay rights his work. Others echoed the sentiment in less elegant formulations. Be gay, my world seemed to say. Be openly gay, if you want. But don't flaunt.

I didn't experience the advice as antigay. The law school is a vigorously tolerant place, embedded in a university famous for its gay student population. (As the undergraduate jingle goes: "One in four, maybe more/One in three, maybe me/One in two, maybe you.") I took my colleague's words as generic counsel to leave my personal life at home. I could see that research related to one's identity - referred to in the academy as "mesearch" - could raise legitimate questions about scholarly objectivity.

I also saw others playing down their outsider identities to blend into the mainstream. Female colleagues confided that they would avoid references to their children at work, lest they be seen as mothers first and scholars second. Conservative students asked for advice about how open they could be about their politics without suffering repercussions at some imagined future confirmation hearing. A religious student said he feared coming out as a believer, as he thought his intellect would be placed on a 25 percent discount. Many of us, it seemed, had to work our identities as well as our jobs.

It wasn't long before I found myself resisting the demand to conform. What bothered me was not that I had to engage in straight-acting behavior, much of which felt natural to me. What bothered me was the felt need to mute my passion for gay subjects, people, culture. At a time when the law was transforming gay rights, it seemed ludicrous not to suit up and get in the game.

"Mesearch" being what it is, I soon turned my scholarly attention to the pressure to conform. What puzzled me was that I felt that pressure so long after my emergence from the closet. When I stopped passing, I exulted that I could stop thinking about my sexuality. This proved naïve. Long after I came out, I still experienced the need to assimilate to straight norms. But I didn't have a word for this demand to tone down my known gayness.

Then I found my word, in the sociologist Erving Goffman's book "Stigma." Written in 1963, the book describes how various groups - including the disabled, the elderly and the obese - manage their "spoiled" identities. After discussing passing, Goffman observes that "persons who are ready to admit possession of a stigma. . .may nonetheless make a great effort to keep the stigma from looming large." He calls this behavior covering. He distinguishes passing from covering by noting that passing pertains to the visibility of a characteristic, while covering pertains to its obtrusiveness. He relates how F.D.R. stationed himself behind a desk before his advisers came in for meetings. Roosevelt was not passing, since everyone knew he used a wheelchair. He was covering, playing down his disability so people would focus on his more conventionally presidential qualities.

As is often the case when you learn a new idea, I began to perceive covering everywhere. Leafing through a magazine, I read that Helen Keller replaced her natural eyes (one of which protruded) with brilliant blue glass ones. On the radio, I heard that Margaret Thatcher went to a voice coach to lower the pitch of her voice. Friends began to send me e-mail. Did I know that Martin Sheen was Ramon Estevez on his birth certificate, that Ben Kingsley was Krishna Bhanji, that Kirk Douglas was Issur Danielovitch Demsky and that Jon Stewart was Jonathan Leibowitz?

In those days, spotting instances of covering felt like a parlor game. It's hard to get worked up about how celebrities and politicians have to manage their public images. Jon Stewart joked that he changed his name because Leibowitz was "too Hollywood," and that seemed to get it exactly right. My own experience with covering was also not particularly difficult - once I had the courage to write from my passions, I was immediately embraced.

It was only when I looked for instances of covering in the law that I saw how lucky I had been. Civil rights case law is peopled with plaintiffs who were severely punished for daring to be openly different. Workers were fired for lapsing into Spanish in English-only workplaces, women were fired for behaving in stereotypically "feminine" ways and gay parents lost custody of their children for engaging in displays of same-sex affection. These cases revealed that far from being a parlor game, covering was the civil rights issue of our time.

The New Discrimination

In recent decades, discrimination in America has undergone a generational shift. Discrimination was once aimed at entire groups, resulting in the exclusion of all racial minorities, women, gays, religious minorities and people with disabilities. A battery of civil rights laws - like the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990 - sought to combat these forms of discrimination. The triumph of American civil rights is that such categorical exclusions by the state or employers are now relatively rare.

Now a subtler form of discrimination has risen to take its place. This discrimination does not aim at groups as a whole. Rather, it aims at the subset of the group that refuses to cover, that is, to assimilate to dominant norms. And for the most part, existing civil rights laws do not protect individuals against such covering demands. The question of our time is whether we should understand this new discrimination to be a harm and, if so, whether the remedy is legal or social in nature.

Consider the following cases:

• Renee Rogers, an African-American employee at American Airlines, wore cornrows to work. American had a grooming policy that prevented employees from wearing an all-braided hairstyle. When American sought to enforce this policy against Rogers, she filed suit, alleging race discrimination. In 1981, a federal district court rejected her argument. It first observed that cornrows were not distinctively associated with African-Americans, noting that Rogers had only adopted the hairstyle after it "had been popularized by a white actress in the film '10.' " As if recognizing the unpersuasiveness of what we might call the Bo Derek defense, the court further alleged that because hairstyle, unlike skin color, was a mutable characteristic, discrimination on the basis of grooming was not discrimination on the basis of race. Renee Rogers lost her case.

• Lydia Mikus and Ismael Gonzalez were called for jury service in a case involving a defendant who was Latino. When the prosecutor asked them whether they could speak Spanish, they answered in the affirmative. The prosecutor struck them, and the defense attorney then brought suit on their behalf, claiming national-origin discrimination. The prosecutor responded that he had not removed the potential jurors for their ethnicity but for their ability to speak Spanish. His stated concern was that they would not defer to the court translator in listening to Spanish-language testimony. In 1991, the Supreme Court credited this argument. Lydia Mikus and Ismael Gonzalez lost their case.

• Diana Piantanida had a child and took a maternity leave from her job at the Wyman Center, a charitable organization in Missouri. During her leave, she was demoted, supposedly for previously having handed in work late. The man who was then the Wyman Center's executive director, however, justified her demotion by saying the new position would be easier "for a new mom to handle." As it turned out, the new position had less responsibility and half the pay of the original one. But when Piantanida turned this position down, her successor was paid Piantanida's old salary. Piantanida brought suit, claiming she had been discharged as a "new mom." In 1997, a federal appellate court refused to analyze her claim as a sex-discrimination case, which would have led to comparing the treatment she received to the treatment of "new dads." Instead, it found that Piantanida's (admittedly vague) pleadings raised claims only under the Pregnancy Discrimination Act, which it correctly interpreted to protect women only while they are pregnant. Diana Piantanida lost her case.

Robin Shahar was a lesbian attorney who received a job offer from the Georgia Department of Law, where she had worked as a law student. The summer before she started her new job, Shahar had a religious same-sex commitment ceremony with her partner. She asked a supervisor for a late starting date because she was getting married and wanted to go on a celebratory trip to Greece. Believing Shahar was marrying a man, the supervisor offered his congratulations. Senior officials in the office soon learned, however, that Shahar's partner was a woman. This news caused a stir, reports of which reached Michael Bowers, the attorney general of Georgia who had successfully defended his state's prohibition of sodomy before the United States Supreme Court. After deliberating with his lawyers, Bowers rescinded her job offer. The staff member who informed her read from a script, concluding, "Thanks again for coming in, and have a nice day." Shahar brought suit, claiming discrimination on the basis of sexual orientation. In court, Bowers testified that he knew Shahar was gay when he hired her, and would never have terminated her for that reason. In 1997, a federal appellate court accepted that defense, maintaining that Bowers had terminated Shahar on the basis of her conduct, not her status. Robin Shahar lost her case.

• Simcha Goldman, an Air Force officer who was also an ordained rabbi, wore a yarmulke at all times. Wearing a yarmulke is part of the Orthodox tradition of covering one's head out of deference to an omnipresent god. Goldman's religious observance ran afoul of an Air Force regulation that prohibited wearing headgear while indoors. When he refused his commanding officer's order to remove his yarmulke, Goldman was threatened with a court martial. He brought a First Amendment claim, alleging discrimination on the basis of religion. In 1986, the Supreme Court rejected his claim. It stated that the Air Force had drawn a reasonable line between "religious apparel that is visible and that which is not." Simcha Goldman lost his case.

These five cases represent only a fraction of those in which courts have refused to protect plaintiffs from covering demands. In such cases, the courts routinely distinguish between immutable and mutable traits, between being a member of a legally protected group and behavior associated with that group. Under this rule, African-Americans cannot be fired for their skin color, but they could be fired for wearing cornrows. Potential jurors cannot be struck for their ethnicity but can be struck for speaking (or even for admitting proficiency in) a foreign language. Women cannot be discharged for having two X chromosomes but can be penalized (in some jurisdictions) for becoming mothers. Although the weaker protections for sexual orientation mean gays can sometimes be fired for their status alone, they will be much more vulnerable if they are perceived to "flaunt" their sexuality. Jews cannot be separated from the military for being Jewish but can be discharged for wearing yarmulkes.

This distinction between being and doing reflects a bias toward assimilation. Courts will protect traits like skin color or chromosomes because such traits cannot be changed. In contrast, the courts will not protect mutable traits, because individuals can alter them to fade into the mainstream, thereby escaping discrimination. If individuals choose not to engage in that form of self-help, they must suffer the consequences.

The judicial bias toward assimilation will seem correct and just to many Americans. Assimilation, after all, is a precondition of civilization - wearing clothes, having manners and obeying the law are all acts of assimilation. Moreover, the tie between assimilation and American civilization may be particularly strong. At least since Hector St. John de Crèvecoeur's 1782 "Letters from an American Farmer," this country has promoted assimilation as the way Americans of different backgrounds would be "melted into a new race of men." By the time Israel Zangwill's play "The Melting Pot" made its debut in 1908, the term had acquired the burnish of an American ideal. Theodore Roosevelt, who believed hyphenations like "Polish-American" were a "moral treason," is reputed to have yelled, "That's a great play!" from his box when it was performed in Washington. (He was wrong - it's no accident the title has had a longer run than the play.) And notwithstanding challenges beginning in the 1960's to move "beyond the melting pot" and to "celebrate diversity," assimilation has never lost its grip on the American imagination.

If anything, recent years have seen a revival of the melting-pot ideal. We are currently experiencing a pluralism explosion in the United States. Patterns of immigration since the late 1960's have made the United States the most religiously various country in the history of the world. Even when the demographics of a group - like the number of individuals with disabilities - are presumably constant, the number of individuals claiming membership in that group may grow exponentially. In 1970, there were 9 disability-related associations listed in the Encyclopedia of Associations; in 1980, there were 16; in 1990, there were 211; and in 2000, there were 799. The boom in identity politics has led many thoughtful commentators to worry that we are losing our common culture as Americans. Fearful that we are breaking apart into balkanized fiefs, even liberal lions like Arthur Schlesinger have called for a recommitment to the ethic of assimilation.

Beyond keeping pace with the culture, the judiciary has institutional reasons for encouraging assimilation. In the yarmulke case, the government argued that ruling in favor of the rabbi's yarmulke would immediately invite suits concerning the Sikh's turban, the yogi's saffron robes and the Rastafarian's dreadlocks. Because the courts must articulate principled grounds for their decisions, they are particularly ill equipped to protect some groups but not others in an increasingly diverse society. Seeking to avoid judgments about the relative worth of groups, the judiciary has decided instead to rely on the relatively uncontroversial principle of protecting immutable traits.

Viewed in this light, the judiciary's failure to protect individuals against covering demands seems eminently reasonable. Unfortunately, it also represents an abdication of its responsibility to protect civil rights.

The Case Against Assimilation

The flaw in the judiciary's analysis is that it casts assimilation as an unadulterated good. Assimilation is implicitly characterized as the way in which groups can evade discrimination by fading into the mainstream - after all, the logic goes, if a bigot cannot discriminate between two individuals, he cannot discriminate against one of them. But sometimes assimilation is not an escape from discrimination, but precisely its effect. When a Jew is forced to convert to Protestantism, for instance, we do not celebrate that as an evasion of anti-Semitism. We should not blind ourselves to the dark underbelly of the American melting pot.

Take the cornrows case. Initially, this case appears to be an easy one for the employer, as hairstyle seems like such a trivial thing. But if hair is so trivial, we might ask why American Airlines made it a condition of Renee Rogers's employment. What's frustrating about the employment discrimination jurisprudence is that courts often don't force employers to answer the critical question of why they are requiring employees to cover. If we look to other sources, the answers can be troubling.

John T. Molloy's perennially popular self-help manual "New Dress for Success" also tells racial minorities to cover. Molloy advises African-Americans to avoid "Afro hairstyles" and to wear "conservative pinstripe suits, preferably with vests, accompanied by all the establishment symbols, including the Ivy League tie." He urges Latinos to "avoid pencil-line mustaches," "any hair tonic that tends to give a greasy or shiny look to the hair," "any articles of clothing that have Hispanic associations" and "anything that is very sharp or precise."

Molloy is equally frank about why covering is required. The "model of success," he says, is "white, Anglo-Saxon and Protestant." Those who do not possess these traits "will elicit a negative response to some degree, regardless of whether that response is conscious or subconscious." Indeed, Molloy says racial minorities must go "somewhat overboard" to compensate for immutable differences from the white mainstream. After conducting research on African-American corporate grooming, Molloy reports that "blacks had not only to dress more conservatively but also more expensively than their white counterparts if they wanted to have an equal impact."

Molloy's basic point is supported by social-science research. The economists Marianne Bertrand and Sendhil Mullainathan recently conducted a study in which they sent out résumés that were essentially identical except for the names at the top. They discovered that résumés with white-sounding names like Emily Walsh or Greg Baker drew 50 percent more callbacks than those with African-American-sounding names like Lakisha Washington or Jamal Jones. So it seems that even when Americans have collectively set our faces against racism, we still react negatively to cultural traits - like hairstyles, clothes or names - that we associate with historically disfavored races.

We can see a similar dynamic in the termination of Robin Shahar. Michael Bowers, the state attorney general, disavowed engaging in first-generation discrimination when he said he had no problem with gay employees. This raises the question of why he fired Shahar for having a religious same-sex commitment ceremony. Unlike American Airlines, Bowers provided some answers. He argued that retaining Shahar would compromise the department's ability to deny same-sex couples marriage licenses and to enforce sodomy statutes.

Neither argument survives scrutiny. At no point did Shahar seek to marry her partner legally, nor did she agitate for the legalization of same-sex marriage. The Georgia citizenry could not fairly have assumed that Shahar's religious ceremony would entitle the couple to a civil license. Bowers's claim that Shahar's wedding would compromise her ability to enforce sodomy statutes is also off the mark. Georgia's sodomy statute (which has since been struck down) punished cross-sex as well as same-sex sodomy, meaning that any heterosexual in the department who had ever had oral sex was as compromised as Shahar.

Stripped of these rationales, Bowers's termination of Shahar looks more sinister. When she told a supervisor she was getting married, he congratulated her. When he discovered she was marrying a woman, it wasn't long before she no longer had a job. Shahar's religious ceremony was not in itself indiscreet; cross-sex couples engage in such ceremonies all the time. If Shahar was flaunting anything, it was her belief in her own equality: her belief that she, and not the state, should determine what personal bonds are worthy of celebration.

The demand to cover is anything but trivial. It is the symbolic heartland of inequality - what reassures one group of its superiority to another. When dominant groups ask subordinated groups to cover, they are asking them to be small in the world, to forgo prerogatives that the dominant group has and therefore to forgo equality. If courts make critical goods like employment dependent on covering, they are legitimizing second-class citizenship for the subordinated group. In doing so, they are failing to vindicate the promise of civil rights.

So the covering demand presents a conundrum. The courts are right to be leery of intervening in too brusque a manner here, as they cannot risk playing favorites among groups. Yet they also cannot ignore the fact that the covering demand is where many forms of inequality continue to have life. We need a paradigm that gives both these concerns their due, adapting the aspirations of the civil rights movement to an increasingly pluralistic society.

The New Civil Rights

The new civil rights begins with the observation that everyone covers. When I lecture on covering, I often encounter what I think of as the "angry straight white man" reaction. A member of the audience, almost invariably a white man, almost invariably angry, denies that covering is a civil rights issue. Why shouldn't racial minorities or women or gays have to cover? These groups should receive legal protection against discrimination for things they cannot help. But why should they receive protection for behaviors within their control - wearing cornrows, acting "feminine" or flaunting their sexuality? After all, the questioner says, I have to cover all the time. I have to mute my depression, or my obesity, or my alcoholism, or my shyness, or my working-class background or my nameless anomie. I, too, am one of the mass of men leading lives of quiet desperation. Why should legally protected groups have a right to self-expression I do not? Why should my struggle for an authentic self matter less?

I surprise these individuals when I agree. Contemporary civil rights has erred in focusing solely on traditional civil rights groups - racial minorities, women, gays, religious minorities and people with disabilities. This assumes those in the so-called mainstream - those straight white men - do not also cover. They are understood only as obstacles, as people who prevent others from expressing themselves, rather than as individuals who are themselves struggling for self-definition. No wonder they often respond to civil rights advocates with hostility. They experience us as asking for an entitlement they themselves have been refused - an expression of their full humanity.

Civil rights must rise into a new, more inclusive register. That ascent makes use of the recognition that the mainstream is a myth. With respect to any particular identity, the word "mainstream" makes sense, as in the statement that straights are more mainstream than gays. Used generically, however, the word loses meaning. Because human beings hold many identities, the mainstream is a shifting coalition, and none of us are entirely within it. It is not normal to be completely normal.

This does not mean discrimination against racial minorities is the same as discrimination against poets. American civil rights law has correctly directed its concern toward certain groups and not others. But the aspiration of civil rights - the aspiration that we be free to develop our human capacities without the impediment of witless conformity - is an aspiration that extends beyond traditional civil rights groups.

To fulfill that aspiration, we must think differently both within the law and outside it. With respect to legal remedies, we must shift away from claims that demand equality for particular groups toward claims that demand liberty for us all. This is not an exhortation that we strip protections from currently recognized groups. Rather, it is a prediction that future courts will be unable to sustain a group-based vision of civil rights when faced with the broad and irreversible trend toward demographic pluralism. In an increasingly diverse society, the courts must look to what draws us together as citizens rather than to what drives us apart.

As if in recognition of that fact, the Supreme Court has moved in recent years away from extending protections on the basis of group membership and toward doing so on the basis of liberties we all possess. In 2003, the court struck down a Texas statute that prohibited same-sex sodomy. It did not, however, frame the case as one concerning the equality rights of gays. Instead, it cast the case as one concerning the interest we all - straight, gay or otherwise - have in controlling our intimate lives. Similarly, in 2004, the court held that a state could be required by a Congressional statute to make its courthouses wheelchair accessible. Again, the court ruled in favor of the minority group without framing its analysis in group-based equality rhetoric. Rather, it held that all people - disabled or otherwise - have a "right of access to the courts," which had been denied in that instance.

In these cases, the court implicitly acknowledged the national exhaustion with group-based identity politics and quieted the anxiety about pluralism that is driving us back toward the assimilative ideal. By emphasizing the interest all individuals have in our own liberty, the court focused on what unites us rather than on what divides us. While preserving the distinction between being and doing, the court decided to protect doing in its own right.

If the Supreme Court protects individuals against covering demands in the future, I believe it will do so by invoking the universal rights of people. I predict that if the court ever recognizes the right to speak a native language, it will protect that right as a liberty to which we are all entitled, rather than as a remedial concession granted to a particular national-origin group. If the court recognizes rights to grooming, like the right to wear cornrows, I believe it will do so under something akin to the German Constitution's right to personality rather than as a right attached to racial minorities. And I hope that if the court protects the right of gays to marry, it will do so by framing it as the right we all have to marry the person we love, rather than defending "gay marriage" as if it were a separate institution.

A liberty-based approach to civil rights, of course, brings its own complications, beginning with the question of where my liberty ends and yours begins. But the ability of liberty analysis to illuminate our common humanity should not be underestimated. This virtue persuaded both Martin Luther King Jr. and Malcolm X to argue for the transition from civil rights to human rights at the ends of their lives. It is time for American law to follow suit.

While I have great hopes for this new legal paradigm, I also believe law will play a relatively small part in the new civil rights. A doctor friend told me that in his first year of medical school, his dean described how doctors were powerless to cure the vast majority of human ills. People would get better, or they would not, but it would not be doctors who would cure them. Part of becoming a doctor, the dean said, was to surrender a layperson's awe for medical authority. I wished then that someone would give an analogous lecture to law students and to Americans at large. My education in law has been in no small part an education in its limitations.

As an initial matter, many covering demands are made by actors the law does not - and in my view should not - hold accountable, like friends, family, neighbors, the "culture" or individuals themselves. When I think of the covering demands I have experienced, I can trace many of them only to my own censorious consciousness. And while I am often tempted to sue myself, I recognize this is not my healthiest impulse.

Law is also an incomplete solution to coerced assimilation because it has yet to recognize the myriad groups that are subjected to covering demands even though these groups cannot be defined by traditional classifications like race, sex, orientation, religion and disability. Whenever I speak about covering, I receive new instances of identities that can be covered. The law may someday move to protect some of these identities. But it will never protect them all.

For these and other reasons, I am troubled that Americans seem increasingly inclined to turn toward the law to do the work of civil rights precisely when they should be turning away from it. The primary solution lies in all of us as citizens, not in the tiny subset of us who are lawyers. People confronted with demands to cover should feel emboldened to seek a reason for that demand, even if the law does not reach the actors making the demand or recognize the group burdened by it. These reason-forcing conversations should happen outside courtrooms - in public squares and prayer circles, in workplaces and on playgrounds. They should occur informally and intimately, in the everyday places where tolerance is made and unmade.

What will constitute a good-enough reason to justify assimilation will obviously be controversial. We have come to some consensus that certain reasons are illegitimate - like racism, sexism or religious intolerance. Beyond that, we should expect conversations rather than foreordained results - what reasons count, and for what purposes, will be for us all to decide by facing one another as citizens. My personal inclination is always to privilege the claims of the individual against countervailing interests like "neatness" or "workplace harmony." But we should have that conversation.

Such conversations are the best - and perhaps the only - way to give both assimilation and authenticity their due. They will help us alleviate conservative alarmists' fears of a balkanized America and radical multiculturalists' fears of a monocultural America. The aspiration of civil rights has always been to permit people to pursue their human flourishing without limitations based on bias. Focusing on law prevents us from seeing the revolutionary breadth of that aspiration. It is only when we leave the law that civil rights suddenly stops being about particular agents of oppression and particular victimized groups and starts to become a project of human flourishing in which we all have a stake.

I don't teach classes on gay rights any more. I suspect many of my students now experience me as a homosexual professional rather than as a professional homosexual, if they think of me in such terms at all. But I don't experience myself as covering. I've just moved on to other interests, in the way scholars do. So the same behavior - not teaching gay rights - has changed in meaning over time.

This just brings home to me that the only right I have wanted with any consistency is the freedom to be who I am. I'll be the first to admit that I owe much of that freedom to group-based equality movements, like the gay rights movement. But it is now time for us as a nation to shift the emphasis away from equality and toward liberty in our debates about identity politics. Only through such freedom can we live our lives as works in progress, which is to say, as the complex, changeful and contradictory creatures that we are.

Kenji Yoshino is a professor at Yale Law School. This article is adapted from his book,"Covering: The Hidden Assault on Our Civil Rights," which will be published by Random House later this month.

Wednesday, January 11, 2006

JPOD Catch-Up

Some pictures of the month-old ZeYo!

Minnesota Stories

Cousin, with her new video ipod, introduced me to one great podcast (which, incidently, you don't need a video ipod to view, Cousin!), it is called "Minnesota Stories: Minnesota slices of life, every weekday"

You can download it for free through itunes, or go to

So far, it rocks.

One of the most recent podcasts was the Iraq Candlelight Service at one particularly crazy liberal catholic church in Minneapolis (not our church, incidently, which should give us great hope, that there are, in fact many crazy liberal catholic churches here).

As I write, I am watching "Christmas Cheer 01-01" which is a strange video of a couple of guys destroying a bunch of electronics to some hard rock.

Most of them are better than that one.

Did He Survive?

I've never watched the show until now. As it turns out, a cousin of mine will be on this up coming season of Survivor! His name is Shane Powers and he is labeled an "Advertising Executive." There is a lot of buzz going around my family, trying to figure out how far he got (his parents aren't saying anything and, in fact, signed a contract agreeing NOT to say anything). News is that he returned from Panama very skinnny.

Tuesday, January 10, 2006

Made In China

Sorry for the hitatus. I think our lives are starting to settle down a bit. Boy is good, but sometimes turns into "Diablo" at night. I find that our days seem much shorter. Not necessarily because we are lacking in sleep (which we are, but that is another matter). It is just that we seem to spend much more time in the "sleep process" while, ultimately, getting much less sleep. We find ourselves heading to bed between 9 and 9:30, and getting out of bed around 9 (a.m. after taking the FYO to school) but only getting 6 hours of sleep.


Anyway, many bloggable obervations have been made, but none recorded.


Tonight, however, we were hanging out with Sidekick and I noticed these completely styling pink cow-girl boots she was wearing and commented on them.

Her response: They were made in China!

She had noticed a little tag on the inside seam.

Although I can definitely see Sidekick becoming an anti-child-labor activist, this is not why she made this observation. She and her parents are adopting a little girl from China very soon. She was observing that her darling boots, like her future baby sister were made in China.

All things good are made in China!

Tuesday, January 03, 2006

Three Girls and a Toy-Toy

When Cousin and I were little, we renamed the standard male and female parts with more, um, personally-suitable nouns.

In a move that would turn out to be particularly ironic in my case, the male parts were named "Toy-Toy".

The Toy-Toy is some new equipment in our household and has taken, now, three weeks and 4 days for us to become somewhat accustomed.

Because I am a bit of a data head, I have keept track of such things as, for example, the fact that we have had six "open air leaks." This means, that while changing the young sir, he has peed all over us and everything around us at the time.


Sunday, January 01, 2006

Larry David on Brokeback Mountain

Check out Larry David's hilarious explanation for why he won't go see the movie:

January 1, 2006
Op-Ed Contributor
Cowboys Are My Weakness
SOMEBODY had to write this, and it might as well be me. I haven't seen "Brokeback Mountain," nor do I have any intention of seeing it. In fact, cowboys would have to lasso me, drag me into the theater and tie me to the seat, and even then I would make every effort to close my eyes and cover my ears.

And I love gay people. Hey, I've got gay acquaintances. Good acquaintances, who know they can call me anytime if they had my phone number. I'm for gay marriage, gay divorce, gay this and gay that. I just don't want to watch two straight men, alone on the prairie, fall in love and kiss and hug and hold hands and whatnot. That's all.

Is that so terrible? Does that mean I'm homophobic? And if I am, well, then that's too bad. Because you can call me any name you want, but I'm still not going to that movie.

To my surprise, I have some straight friends who've not only seen the movie but liked it. "One of the best love stories ever," one gushed. Another went on, "Oh, my God, you completely forget that it's two men. You in particular will love it."

"Why me?"

"You just will, trust me."

But I don't trust him. If two cowboys, male icons who are 100 percent all-man, can succumb, what chance to do I have, half- to a quarter of a man, depending on whom I'm with at the time? I'm a very susceptible person, easily influenced, a natural-born follower with no sales-resistance. When I walk into a store, clerks wrestle one another trying to get to me first. My wife won't let me watch infomercials because of all the junk I've ordered that's now piled up in the garage. My medicine cabinet is filled with vitamins and bald cures.

So who's to say I won't become enamored with the whole gay business? Let's face it, there is some appeal there. I know I've always gotten along great with men. I never once paced in my room rehearsing what to say before asking a guy if he wanted to go to the movies. And I generally don't pay for men, which of course is their most appealing attribute.

And gay guys always seem like they're having a great time. At the Christmas party I went to, they were the only ones who sang. Boy that looked like fun. I would love to sing, but this weighty, self-conscious heterosexuality I'm saddled with won't permit it.

I just know if I saw that movie, the voice inside my head that delights in torturing me would have a field day. "You like those cowboys, don't you? They're kind of cute. Go ahead, admit it, they're cute. You can't fool me, gay man. Go ahead, stop fighting it. You're gay! You're gay!"

Not that there's anything wrong with it.

Larry David appears in the HBO series "Curb Your Enthusiasm."