Legal Commentary

Yeah, Yeah, Yeah: Spitzer did a stupid, illegal thing. BUT, let's pause for a second. Here are things he did NOT do: he was not ?involved in? or ?engaged in a prostitution ring," as the misleading reports labeled his acts, implying he was involved in the operations of the company. He was a client. Yes, a John. The company is an ultra high-end call-girl network. Yes, prostitution, but, I argue, not the kind that feminists should be particularly concerned with. Many of these girls are probably confident, educated, empowered college or graduate students with all sorts of goals in life, who, exercising their agency, prefer making $5000 (or even $2000, after the company takes its share) an hour sleeping with some of the world?s most powerful politicians and business men than waiting tables, washing dishes, or working at Wal-Mart for $8 an hour.

As it so happens, today in my Work, Welfare, and Justice seminar, I am teaching a piece by philosopher Harriett Baber, Adaptive Preference:

Martha Nussbaum argues that preference welfarism, the doctrine that a person?s good consists in the satisfaction of her informed desires, fails to explain our intuitions in cases of ?adaptive preference,? where the preferences of individuals in deprived circumstances are formed in response to their restricted options. Intuitively, it is better for individuals to get what they want than to adjust their wants to be satisfied by what they can get. Preference welfarism however cannot mark this difference as morally significant. I argue , first, that given a reasonable account of preference as it figures in utilitarian accounts, cases of the sort she describes are not examples of adaptive preference and do not undermine the preference utilitarian?s account of what is good for people. The problem is not, as Nussbaum suggests, that the preferences of deprived individuals have been ?distorted? but rather that they are not satisfied.

In the paper Baber makes the case that even in difficult third world conditions, it may be that under certain conditions women prefer prostitution to other forms of difficult work not because they suffer from false consciousness or because they are coerced into it, but their choice set is narrow and they can rationally view their life in a brothel as better than their life in a sweatshop. In those context, I would argue that preferences even if rational should be narrowed by law because of the abusive gender exploitation and the proximity that the less abusive forms have to the worse forms of prostitution. In the context of the Emperor VIP, rational choice is a much easier case to make. And by legalizing this type of high end global operation, it becomes easier and more morally justified to eradicate the worse forms of prostitution.

One more thing about Spitzer. My colleague Tom Smith has a damning critique of his behavior. Well, sure, he acted stupidly. But this one act doesn?t necessarily make him stupid, incompetent, nor does it overshadow his entire career. My dear friend, Dan Ariely, has a book out this month, Predictably Irrational:The Hidden Forces That Shape Our Decisions. (I am delighted to report the book hit #5 on the NYT bestselling non-fiction list this week!) In one of the chapters Ariely describes an experiment he conducted in collaboration with another behavioral economist guru, George Loewenstein. In their article, Heat of the Moment: The Effect of Sexual Arousal on Sexual Decision Making, Ariely and Loewenstein state that it is odd that little research has been conducted on the impact of sexual arousal on judgment. Through research, they find that as aroused participants? interest in procuring sex increased, willingness to use morally questionable methods to obtain the sex increased and probability of using protection decreased. They also show that participants were unable to predict how much of an effect a state of arousal will have on their decision-making. In other words, Spitzer acted stupidly human. All of this is no justification for the Governor of NY to not take a cold shower to move away from his aroused state before calling a high-end prostitution ?ring? (I like ?company? better). But still, there are worse things people do in positions of power than use their private bank account to spend an evening with a girl away from home. I for one think that a powerful married political hitting on a subordinate in his office is worse than paying someone arranged by an agency. I also think that one can make the case that there are degrees of adultery and that sleeping with a call girl is not as bad as having a mistress. But this is just off the top of my head and I need to go prepare for class. One last thing: schadenfreude is simply bad for your health. Compassion is a far better sentiment for our well-being.