Wednesday, 31 July 2013

Sam Keller defeats EA Sports in Ninth Circuit

Major decision out of the Ninth Circuit today -- and will have serious consequences for the O'Bannon case, which is also being tried in the Ninth Circuit.  I answer some questions for SI on today's developments.

Tuesday, 30 July 2013

Pressing Your Buttons (from my book Believing Bullshit)


One way in which we can shape the beliefs of others is by rational persuasion. Suppose, for example, that I want someone to believe that Buckingham Palace is in London (which it is). I could provide them with a great deal of evidence to support that belief. I could also just take them to London so they can see with their own eyes that that’s where Buckingham Palace is located.

But what if these kinds of method aren’t available? Suppose I have little or no evidence to support the belief I nevertheless want people to accept. Suppose I can’t just show them that it’s true. How else might I get them to believe?

I might try to dupe them, of course. I could produce fraudulent evidence and bogus arguments. But what if I suspect this won’t be enough? What if I think my deceit is likely to be detected? Another option is to drop even the pretence of rational persuasion and to adopt what I call Pressing your Buttons.

Belief-shaping mechanisms

All sorts of causal mechanisms can be used to shape belief. For example, our beliefs are shaped by social and psychological mechanisms such as peer pressure and a desire to conform. Finding ourselves believing something of which our community disapproves is a deeply uncomfortable experience, an experience that may lead us unconsciously to tailor what we believe so that we remain in step with them. We’re far more susceptible to such social pressures than we like to believe (as several famous psychological studies have shown[i]).

Belief can also be shaped through the use of reward and punishment. A grandmother may influence the beliefs of her grandson by giving him a sweet whenever he expresses the kind of beliefs of which she approves, and ignores or smacks him when he expresses the “wrong” sort of belief. Over time, this may change not just the kind of beliefs her grandson expresses, but also the kinds of belief he holds.

Perhaps beliefs might also be directly implanted in us. Some suppose God has implanted certain beliefs in at least some of us. Our evolutionary history may also produce certain beliefs, or at least certain predispositions to belief. For example, there’s growing evidence that a disposition towards religious belief is part of our evolutionary heritage, bestowed on us by natural selection. But even if neither God, nor evolution, has implanted beliefs in us, perhaps we’ll one day be able to implant beliefs ourselves using technology. Perhaps we’ll be able to strap a brain-state-altering helmet on to an unwitting victim while they sleep, dial in the required belief, press the red button and “Bing!”, our victim wakes up with the belief we’ve programmed them hold. That would be a rather cruel trick. Some hypnotists claim a similar ability to, as it were, directly “inject” beliefs into people’s minds.

Obviously, these kinds of causal mechanism can operate on us without our realizing what’s going on. I might think I condemn racism because I have good grounds for supposing racism is morally wrong, but the truth is I have merely caved into peer pressure and my desire not to be ostracised by my liberal family and friends. If a belief has been implanted in me by, say, natural selection, or by some brain-state-altering device then, again, I may not be aware that this is the reason why I believe. Suppose, for example, that some prankster to programmes me to believe I have been abducted by aliens using the belief-inducing helmet described above. I wake up one morning and find, as a result, that I now very strongly believe I was taken aboard a flying saucer during the night. I have no awareness of the real reason why I now hold that belief – of the mechanism that actually produced the belief in me. If asked how I know I was abducted, I will probably say “I Just Know!”

Isolation, control, uncertainty, repetition, emotion

I’m going to focus here on five important belief-shaping mechanisms: isolation, control, uncertainty, repetitionand emotion.

(i) isolation. Isolation is a useful belief-shaping tool. An isolated individual is more vulnerable to various forms of psychological manipulation. If you want someone to believe something that runs contrary to what their friends and family believe, it’s a good idea to have them spend some time at a retreat or remote training camp where their attachment to other ideas can more easily be undermined. Cults often isolate their members in this way. The The cult leader Jim Jones physically moved both himself and all his followers to the Guyanan jungle (where they all eventually committed suicide). Isolation is also recommended by some within more mainstream religions. In the UK, hermetically sealed-off religious schools are not uncommon. Students at the Tarbiyah Academy in Dewsbury, for example, are allegedly taught that

‘the enemies of Allah’ have schemed to poison the thinking and minds of [Muslim] youth and to plant the spirit of unsteadiness and moral depravity in their lives. Parents are told that they betray their children if they allow them to befriend non-Muslims.[ii]

A related mechanism is:

(ii) control. If you want people to accept your belief system, it’s unwise to expose them to alternative systems of belief. Gain control over the kind of ideas to which they have access and to which they are exposed. Censor beliefs and ideas that threaten to undermine your own. This kind of control is often justified on the grounds that people will otherwise be corrupted or confused. Totalitarian regimes will often remove “unhealthy” books from their libraries if the books contradict the regime. All sorts of media are restricted on the grounds that they will only “mislead” people. Schools under totalitarian regimes will sometimes justify preventing children from discovering or exploring other points of view on the grounds they will only succeed in “muddling” children. Take a leaf out of the manuals of such regimes and restrict your followers’ field of vision so that everything is interpreted through a single ideological lens – your own.

(iii) uncertainty. If you want people to abandon their former beliefs and embrace your own, or if you want to be sure they won’t reject your beliefs in favour of others, it helps to raise as much doubt and uncertainty as possible about those rival beliefs. Uncertainty is a potent source of stress, so the more you associate alternative beliefs with uncertainty, the better. Ideally, offer a simple set of geometric, easily formulated and remembered certainties designed to give meaning to and cover every aspect of life. By constantly harping on the vagaries, uncertainties and meaninglessness of life outside your belief system, the simple, concrete certainties you offer may begin to seem increasingly attractive to your audience.

(iv) repetition. Encourage repetition. Get people to recite what you want them to believe over and over again in a mantra-like way. Make the beliefs trip unthinkingly off their tongues. It doesn’t matter whether your subjects accept what they are saying, or even fully understand it, to begin with. There’s still a fair chance that belief will eventually take hold. Mindless repetition works especially well when applied in situations in which your subjects feel powerful pressure to confirm. Lining pupils up in playgrounds for a daily, mantra-like recitation of your key tenets, for example, combines repetition with a situation in which any deviation by an individual will immediately result in a hundred pairs of eyes turned in their direction.

(v) emotion. Emotion can be harnessed to shape belief. Fear is particularly useful. In George Orwell’s novel Nineteen Eighty-Four, the regime seeks control not just over people’s behaviour, but, even more importantly, what they think and feel. When the hapless rebel Winston is finally captured, his ”educators” make it clear that what ultimately concerns them are his thoughts:

“And why do you imagine that we bring people to this place?”
“To make them confess.”
“No, that is not the reason. Try again.”
“To punish them.”
“No!” exclaimed O’Brien. His voice had changed extraordinarily, and his face had suddenly become both stern and animated. “No! Not merely to extract your confession, not to punish you. Shall I tell you why we have brought you here? To cure you! To make you sane! Will you understand, Winston, that no one whom we bring to this place ever leaves our hands uncured? We are not interested in those stupid crimes that you have committed. The Party is not interested in the overt act: the thought is all we care about.[iii]

The terrifying contents of Room 101 eventually cause Winston to succumb. He ends up genuinely believing that if Big Brother says that 2 plus 2 equals five, then two plus two does equal five. Many real regimes have been prepared to employ similarly brutal methods to control what is going on in people’s minds. However, emotional manipulation can take much milder forms yet still be effective. For example, you might harness the emotional power of iconic music and imagery. Ensure people are regularly confronted by portraits of Our Leader accompanied by smiling children and sunbeams emanating from his head (those Baghdad murals of Saddam Hussein spring to mind). Ensure your opponents and critics are always portrayed accompanied by images of catastrophe and suffering, or even Hieronymus-Bosch-like visions of hell. Make people emotional dependent on your own belief system. Ensure that what self-esteem and sense of meaning, purpose and belonging they have is derived as far as possible from their belonging to your system of belief. Make sure they recognise that abandoning that belief system will involve the loss of things about which they care deeply.

It goes without saying that these five mechanisms of thought-control are popular with various totalitarian regimes. They are also a staple of many extreme religious cults.

Applied determinedly and systematically, these mechanisms can be highly effective in shaping belief and suppressing “unacceptable” lines of thought. They are particularly potent when applied to children and young adults, whose critical defences are weak, and who have a sponge-like tendency to accept whatever they are told.

Note that traditional mainstream religious education has sometimes also involved heavy reliance on many, sometimes all, of these five mechanisms. I was struck by a story a colleague once told me that, as a teenage pupil of rather strict Catholic in the 1960’s, she once put her hand up in class to ask why contraception was wrong. She was immediately sent to the headmaster who asked her why she was obsessed with sex. Interestingly, my colleague added that, even before she asked the question, she knew she shouldn’t. While never explicitly saying so, her school and wider Catholic community had managed to convey to her that asking such a question was unacceptable. Her role was not to think and question, but to passively accept. My colleague added that, even today, nearly half a century later later, despite the fact that she no longer has any religious conviction, she finds herself feeling guilty if she dares to question a Catholic belief. So effective was her religious upbringing in straight-jacketing her thinking that she still feels instinctively that to do so is to commit a thought-crime.

Of course, religious education doesn’t have to be like this, and often it isn’t. An open, questioning attitude can be encouraged rather than suppressed. Still, it’s clear that some mainstream religions have historically been very reliant upon such techniques so far as the transmission of the faith from one generation to the next is concerned. In some places, they still are.


Applied in a consistent and systematic fashion these various techniques add up to what many would call “brainwashing”. Kathleen Taylor, a research scientist in physiology at the University of Oxford, upon whose work I am partly drawing here, has published a book on brainwashing. In an associated newspaper article, Taylor writes that:

One striking fact about brainwashing is its consistency. Whether the context is a prisoner of war camp, a cult’s headquarters or a radical mosque, five core techniques keep cropping up: isolation, control, uncertainty, repetition and emotional manipulation.[iv]

Taylor adds in her book that within the discipline of psychology, “brainwashing” is an increasingly superfluous word. It can be a misleading term, associated as it is, with Manchurian-Candidate-type stories of seemingly ordinary members of the public transformed into presidential, assassins on hearing a trigger phrase. As Taylor says, that kind of brainwashing is a myth. Case studies suggest there is

no “magic” process called “brainwashing”, though many (including the U.S. government) have spent time and money looking for such a process. Rather the studies suggest that brainwashing… is best regarded as a collective noun for various, increasingly well-understood techniques of non-consensual mind-change.

The unwitting and well-intentioned brainwasher

Often, those who use such techniques are despicable people with the evil aim of enslaving minds. Edward Hunter, the CIA operative who coined the phrase back in 1950, characterized brainwashing in emotive terms:

The intent is to change a mind radically so that its owner becomes a living puppet – a human robot – without the atrocity being visible from the outside. The aim is to create a mechanism in flesh and blood, with new beliefs and new thought processes inserted into a captive body. What that amounts to is the search for a slave race that, unlike the slaves of olden times, can be trusted never to revolt, always to be amenable to orders, like an insect to its instincts.

Perhaps this very often was the intent so far as the regimes of which Hunter had experience were concerned. However, surely the intent to produce mental slaves is not required for brainwashing. Sometimes those who apply these techniques genuinely believe themselves to be doing good. Their intention is not to enslave but to free their victims from evil and illusion. Yet, despite the absence of any evil intent, heavy reliance on such techniques still adds up to brainwashing. Brainwashers can be good people with little or no awareness that what they are engaged in is brainwashing.

The consenting victim

In the second Taylor quotation above, Taylor says that brainwashing involves various techniques of non-consensual mind-change. That cannot be quite right. Of course, prisoners-of-war don’t usually consent to being brainwashed. But people can in principle consent. In one well-known thriller, the trained assassin at the heart of the film turns out to have agreed to be brainwashed. The fact that he consented to have such techniques applied to him doesn’t entail that he wasn’t brainwashed.

People sometimes willingly submit themselves to brainwashing. They sign up to be brainwashed at a cult’s training camp, say. Admittedly, they will not usually describe what they have signed up to as “brainwashing”. As they see it, even while they are fully aware that the above techniques will be applied to them, they nevertheless suppose they are merely being “educated” - being put through a process that will open up their minds and allow them to see the truth.

Also notice that people are sometimes forcibly confronted with the truth. I might be forced to look at compelling evidence that someone I love has done some terrible deed, evidence that does convince me that they’re guilty. So not only is not all brainwashing non-consensual, not all non-consensual mind-change is brainwashing.

Reason vs. brainwashing

So what is brainwashing, then? What marks it out from other belief-shaping mechanisms? At this point, some readers might be wondering whether what I am calling “brainwashing” is really any different to any other educational method. Isn’t the application of reason to persuade really just another form of thought-control? Just another way of wielding power over the minds of others? So why shouldn’t we favour brainwashing over reason? Particularly if no one is actually being coerced, threatened or harmed?

In fact, there’s at least one very obvious and important difference between the use of reason and the use of these kinds of belief-shaping techniques. Reason is truth-sensitive. It favours true beliefs over false beliefs. Trying making a rational case for believing that New Jersey is populated with ant-people or that the Earth’s core is made of yoghurt. Because these beliefs are false, you’re not going to find it easy.

Reason functions, in effect, as a filter on false beliefs. It’s not one hundred percent reliable of course – false beliefs can still get through. But it does tend to weed out false beliefs. There are innumerable beliefs out there that might end up lodging in your head, from the belief that Paris is the capital of France to the belief that the Earth is ruled by alien lizard-people. Apply your filter of reason, and only those with a fair chance of being true will get through. Turn your filter off, and your head will soon fill up with nonsense.

And yet many belief systems do demand that we turn our filters off, at least when it comes to their own particular beliefs. In fact, those who turn their filters off – those whose minds have become entirely passive receptacles of the faith – are often held up by such belief-systems as a shining example to others. Mindless, uncritical acceptance (or, as they would see it, a simple, trusting faith in the pronouncements of Big Brother) is paraded as a badge of honour.

Reason is a double-edged sword. It does not favour the beliefs of the “educator” over those of the “pupil”. It favours those beliefs that are true. This means that if you try to use reason to try to bring others round to your way of thinking, you run the risk that they may be able to demonstrate that it is actually you that’s mistaken. That’s a risk that some “educators” aren’t prepared to take.

The contrast between the use of reason to persuade, and the use of the kind of belief-shaping mechanisms outlined above, is obvious. You can use emotional manipulation, peer pressure, censorship and so on to induce beliefs that happen to be true. But they can be just effectively used to induce belief that Big Brother loves you, that there are fairies at the bottom of the garden and that the Earth’s core is made of yoghurt. Such techniques do indeed favour the beliefs of the “educator” over those of the “pupil”. Which is precisely why those “educators” who suspect they may end up losing the argument tend to favour them.

I call the application of such non-truth-sensitive belief-inducing techniques – techniques that don’t require even the pretence of rational persuasion – Pressing Your Buttons. Brainwashing involves the systematic and dedicated application of such button-pressing techniques.

Of course, to some extent, we can’t avoid pressing the buttons of others. Nor can we entirely avoid having our own buttons pressed. That fact is, we all have our beliefs shaped by such non-truth sensitive mechanisms. No doubt we flatter ourselves about just how “rational” we really are. And, like it or not, you will inevitably influence the beliefs of others by non-truth-sensitive means.

For example, my own children’s beliefs are undoubtedly shaped by the kind of peer group to which I introduce them, by their desire to want to please (or perhaps annoy) me, by the range of different beliefs to which I have given them access at home, and so on. But of course that’s not yet to say I’m guilty of brainwashing my children. The extent to which we shape the beliefs of other by pressing their buttons, rather than relying on rational means, is a matter of degree. There’s a sliding scale of reliance on non-truth-sensitive mechanisms, with brainwashing located at the far end of the scale. There’s clearly a world of difference between, on the one hand, the parent who tries to give their child access to a wide range of religious and political points of views, encourages their child to think, question, and value reason, and allows their child to befriend children with different beliefs and, on the other hand, the parent who deliberately isolates their child, ensures their child has access only to ideas of which the parent approves, demands formal recitation of certain beliefs, allows their child to befriend children who share the same beliefs, and so on.

The dehumanizing effect of button-pressing

So one key difference between relying on reason to influence the beliefs of others and relying on button pressing is that only the former is sensitive to truth. Button pressing can as easily be used to induce false or even downright ridiculous beliefs as it can true beliefs.

There is also a second important difference worth noting. As the philosopher Kant noted, when you rely on reason to try to influence the beliefs of others, you respect their freedom to make (or fail to make) a rational decision. When you resort to pressing their buttons on the other hand, you are, in effect, stripping them of that freedom. Your subject might think they’ve made a free and rational decision, but the truth is they’re your puppet – you’re pulling their strings. By resorting to button-pressing  – peer pressure, emotional manipulation, repetition, and so on – you are, in effect, treating them as just one more bit of the causally-manipulatable natural order – as mere things. The button-pressing approach is, in essence, a dehumanizing approach.


Clearly, a cult that employs full-blown brainwashing at a training camp is a cause for concern. If the beliefs it induces are pernicious – if, for example, followers are being lured into terrorism – then obviously we should alarmed. However, even if the beliefs induced happen to be benign, there’s still cause for concern.

One reason we should be concerned is the potential hazard such mindless and uncritical followers pose. They may as well have cotton wool in their ears so far as the ideas and arguments of non-believers are concerned. They are immune to reason. Trapped inside an Intellectual Black Hole, they are now largely at the mercy of those who control the ideas at its core. The dangers are obvious.

Such extreme examples of brainwashing are comparatively rare. Still, even if not engaged in full-blown brainwashing, if the promoters of belief system come increasingly to rely on button-pressing to shape the beliefs of others, that too is a cause for concern. The more we rely on button-pressing, the less sensitive to reason and truth our beliefs become.

[i]Solomon Asch’s conformity experiments revealed people are prone to denying the evidence of their own eyes if it brings them into disagreement with others (though admittedly this is not quite the same thing as changing what one believes in order to conform). See Asch, S. E. “Effects Of Group Pressure Upon The Modification And Distortion Of Judgment” in H. Guetzkow (ed.) Groups, Leadership And Men (Pittsburgh, PA: Carnegie Press, 1951).
[ii]The Times, 20th July 2005, p. 25.
[iii]George Orwell, Nineteen Eighty-Four(Harmondsworth: Penguin, 1954), p. 265
[iv]Kathleen Taylor, “Thought Crime” The Guardian, 8th October 2005, p. 23.

Saturday, 27 July 2013

20th Anniversary of Reggie Lewis Death & Its Sports Law Legacy

Today is the 20th anniversary of the death of Reggie Lewis, an all-star Celtics guard/forward who died from a heart attack on July 27, 1993, at the age of 27.

Growing up right outside of Boston, I was a big Reggie Lewis fan. He's still my favorite basketball player of all time. Lewis was one of the most efficient players in the NBA, and had he played today in an era of basketball analytics, he probably would have enjoyed higher star power and commanded discussion at MIT Sloan Sports Analytics and similar forums.

What made Lewis so good?  Terrific defense and all-out hustle were a big part of it.  So too was scoring efficiency.  Hitting close to 50% of his shots, Lewis averaged 21 points per game in each of his last two seasons (91-92 and 92-93) and in the 91-92 season did something that Larry Bird never accomplished -- he led his Celtics team in scoring, steals and blocked shots per game. As Celtics Blog highlighted, Lewis, who was 6'7, also famously blocked Michael Jordan four times in one game.

Lewis had the unenviable task of following Bird as the next great Celtic. It was a task that, had Lenny Bias not died from a cocaine overdose the night the Celtics made him the 2nd overall pick in the 1986 NBA Draft, Lewis would have shared with another potential superstar and the Celtics probably would have gone on to be one of the best teams in the 90s.

But that didn't happen.

On April 29, 1993, Lewis collapsed during a playoff game in Boston against the Charlotte Hornets. A "dream team" of 12 Boston cardiologists concluded that Lewis had cardiomyopathy, also known as "athletes heart" and a potentially fatal condition whereby the heart becomes too thick and beats irregularly. I've written about cardiomyopathy in the context of Eddy Curry and Alan Milstein addressed it when he argued on behalf of Curry that the Chicago Bulls had no right to insist on a DNA test as a condition of Curry's employment. This is also the kind of topic well discussed in David Epstein's new book The Sports Gene.

The doctors told Lewis that his basketball career was over.

Lewis then received a second opinion from Dr. Gilbert Mudge, a cardiologist who as Time Magazine reported, diagnosed Lewis with neurocardiogenic syncope, "a fairly benign fainting condition caused by nerve irregularities during or after peak periods of exertion." At a press conference, Mudge said, "I am confident that under medical supervision Mr. Reggie Lewis will be able to return to professional basketball without limitations." Mudge's opinion was later supported by other cardiologists, although some disagreed and supported the original diagnosis instead.

Lewis did not return to play for the Celtics, whose playoff appearance ended with a 3-1 first round loss against the Hornets, but he did resume a limited amount of practicing. Less than three months later, he would collapse and die while practicing his jump shot.

The death of Lewis raised two legal disputes.

1. Malpractice Lawsuit against Dr. Mudge

In 1996, shortly before the statute of limitations would expire, Lewis's widow, Donna Harris-Lewis, filed a malpractice lawsuit against Mudge. She argued Mudge was negligent in his advice and care of Lewis.  Mudge's key line of defense was that Lewis admitted to Mudge that he used cocaine, but the admission came months after Mudge's diagnosis:
Mudge had testified that Lewis admitted shortly before his death that he had used cocaine, making an accurate diagnosis impossible. Harris-Lewis adamantly denied the charge.
In other words, Mudge argued, he couldn't have provided reasonable care if the patient didn't inform him of a key (alleged) fact: the patient had a history of cocaine use.

The case took three years to litigate.  A jury was unable to reach a verdict and the case was ultimately declared a mistrial, a de facto victory for Mudge.  Harris-Lewis sued Mudge again, unsuccessfully, and an attempt at a third lawsuit was denied by a state appeals court in 2004.  Mudge is currently director of Brigham and Woman's Cardiovascular unit and an associate professor at Harvard Medical School.

2. Threat of $100 million Defamation Suit against The Wall Street Journal

The second legal controversy stemming from Lewis' death was a threat by then Celtics owner Paul Gaston to sue the Wall Street Journal for $100 million for a front-page story it ran on Lewis in 1995. Authored by Ron Suskind, Deadly Silence: How the Inner Circles, Of Medicine and Sports, Failed a Stricken Star attracted the outrage of Gaston, who called it called libelous.  The story suggested that the Celtics deliberately misled their insurance company as to the cause of Lewis' heart condition and that Lewis may have used cocaine. An autopsy of Lewis did not find any evidence linking Lewis with cocaine use.

Among other hurdles for bringing such a suit, it was never clear why Gaston would have had standing to file a defamation suit on Lewis' behalf or for the parts of the story that allegedly defamed Lewis.  The article did suggest that the Celtics withheld information about Lewis' health in order to increase an insurance payout, which means the Celtics (though probably not Gaston himself) could have sued on those grounds.

Critics also questioned why Gaston picked "$100 million" and the merits of such a number.  Use of such an extreme, round number has the unintended effect of diminishing the seriousness of a claim (think Dr. Evil and "$100 billion").  Similarly, many doubted the Celtics would have been willing to go through the pretrial discovery process associated with bringing the lawsuit -- especially one against the Wall Street Journal, which had the financial wherewithal to put up a good fight.  The Celtics' insurers would have surely paid attention to any findings that reflected poorly on the team.

Despite Gaston's threats, he never got around to suing the Wall Street Journal, and the 3-year statute of limitations on a claim expired in 1998.  Here is what Peter May of the Boston Globe wrote on March 18, 1998, right after the statute of limitations expired:
"We spent quite a bit of time with a libel litigator, and as much as I hate the fact that some injustices go unpunished, I decided that this was one that was going to get away," Gaston said yesterday. "I don't see my job to go on a personal crusade against one of the foremost newspapers in the country. My job is to help rebuild the Boston Celtics and run the company which oversees them."   ...

Gaston immediately threatened to sue for $ 100 million, calling the article "defamatory and libelous." He said any proceeds from the lawsuit would go to the Reggie Lewis Foundation.

Several libel specialists contacted by the Globe expressed doubt that a suit would be filed. One said it would be an "uphill battle," and another added, "The last thing the Celtics want to do is bring this to court."

Gaston said a suit would have cost millions of dollars to pursue and that he felt the money could be more efficiently spent. "But, personally," he added, "I am equally disgusted now as I ever was by what appeared. That bitter taste will never leave my mouth."

Dick Tofel, vice president for corporate communications at Dow Jones, the Journal's publisher, said yesterday, "We said when we published the article that we were confident the article was fair and accurate, and we feel the same way three years later."
 For a really good video about Lewis, check out this tribute:

This post is adapted and expanded from a post I wrote three years ago.

Friday, 26 July 2013

New York's Legal Efforts to Combat Sexual Orientation Discrimination in Pro Sports

Earlier this year I wrote an article titled Loaded Question: Asking a draft prospect about his sexual orientation could land a team in a legal minefield for Sports Illustrated (page 16, March 25, 2013 issue). The article centered on the legality of NFL teams asking college players about their sexual orientation.

This week I spoke with Reuters Legal as a follow up to the article and specifically about recent efforts by New York Attorney General Eric Schneiderman, who has invoked New York state’s human rights law, which protects employees from discrimination on the basis of sexual orientation, in warning leagues about sexual orientation discrimination. The NFL has responded by clarifying its policies and MLB and MLBPA have agreed to a new code of conduct barring sexual orientation discrimination.

The full interview is available to Westlaw subscribers but here is an excerpt:

* * *

Reuters: Do you think these matters are in Schneiderman’s purview? Why or why not? 

McCann: My impression is that AG Schneiderman is well within his purview. For one, he is the highest ranking legal officer in New York and he’s entrusted with enforcing New York law. New York law clearly prohibits sexual discrimination in hiring. Second, the National Football League, Major League Baseball and Major League Baseball Players’ Association (not to mention several teams) are all headquartered in New York and a large extent of those leagues’ and union business activities run through New York. 

Reuters: Do you expect these policy efforts will make a difference in players’ and/or teams’ behavior in terms of the treatment and hiring of gays in sports? 

McCann: The policy efforts have already made an impact. The NFL has investigated teams that may have asked prospective players’ about their sexual orientation and the league has also pledged to aggressively enforce existing anti-discriminatory rules. MLB and Major League Baseball Players Association, for their part, have adopted a new code of conduct to strengthen protections against sexual discrimination. The more changes like these are made, the more I believe behavior will change.

* * *

To read the rest, click here.

More fan speech

Here. A fan attended a Brewers game at Miller Park wearing a shirt of Ryan Braun's uniform, with "Fraud" in place of the name. An usher made her turn the shirt inside-out, which she did. Although when she went to the media, the Brewers immediately apologized, invited her to another game, and threw the usher under the bus. And that was the right move--that shirt was unquestionably protected expression that should be encouraged at a forum such as a ballpark--what better place to speak out about cheating in baseball.  Two other things.

First, Miller Park is 71% owned by the government (the Southeast Wisconsin Professional Baseball Park District), so it is a prime candidate for my arguments that through joint participation, the team becomes, at least for ballpark purposes, a state actor subject to the First Amendment and its limitations.

Second, note the vacuousness of the Brewers' statement, which toes the common line on ballpark speech:
We welcome the opportunity for fans to express their opinions. The only circumstances that would warrant us intervening is if someone were to display a message or item that would be considered offensive to other fans.
But every message potentially could be considered offensive to other fans. A friend of Ryan Braun or a member of his family easily would be offended by that shirt. Of course, that is not what the Brewers mean--that mean what they--as the governing authority--would consider offensive to other fans. But we don't allow the governing authority (when subject to the First Amendment) to decide what speech is OK and what is offensive.

Rage against the Infield Fly Rule

The Infield Fly Rule is back in the news and ticking off baseball fans, but this time because the umpires didn't call it. On Wednesday, the Minnesota Twins had runners on first and second with none out. The batter hit a low looping pop-up to the side of the pitcher's mound; the pitcher let the ball drop to the ground, then threw to first to start a double play on the batter and the runner on first (who had to be tagged out). Video here (H/T: One of my team of RAs looking at baseball games and reports looking for Infield Fly situations).

This certainly looks like a play warranting an infield fly call--it was a fair fly ball that could have been caught with ordinary effort in the appropriate game situation. And it did, in fact, lead to a double play (although not the double play the rule is designed to prevent), providing the defense the overwhelming advantage that the rule is intended to avoid. The crew chief explained the non-call as follows:
"For an infield fly, we look for if the ball has arc and if the fielder can catch it with ordinary effort and if the fielder gets comfortably underneath," said crew chief Ted Barrett, who was working third base. "That one definitely had enough arc, but the fielder has to get comfortably underneath the ball to catch it. That's the criteria that wasn't met."
Ironically, that explanation arguably makes the call worse. It looks as if the pitcher was standing still and waiting for the ball; he wasn't settled directly under it only because he already had decided to let it fall to the ground and wanted to be in good position to surround it and pick it up. The better explanation would have been that the ball did not have enough arc (the rule does not apply to line drives, so the umpires would have to decide whether this was more like a pop-up or line drive). If he truly wasn't settled under the ball, it's only because the ball wasn't hit high enough.

As always, the play tells us some things. First, note the shorthand the umpires have developed for when a ball can be caught with ordinary effort. Neither the rule nor commentary says anything about arc or the fielder being settled under the ball, but the umpires have adopted those visual indicators as indications that a ball is catchable with ordinary effort.

Second, this play is an example of why the IFR is necessary. Without it, double plays on intentionally not caught pop-ups are possible (watch the runner on first and see how hung up he is and how he has to retreat close to the base) and that infielders will intentionally not catch the ball to try for the double play. True, this did not produce the double play the rule is designed to prevent; had the batter been running hard to first, he probably would have beaten the throw (he starts running hard only when he sees the ball drop). But look at the :06 mark of the video--both base runners are about two steps off the base; the pitcher easily could have turned around and start a third-to-second (1-5-4, if you're scoring at home) double play on the base runners. The point is that many double plays would be possible if fielders could seek out multiple outs by intentionally not catching an easily catchable ball.

Monday, 22 July 2013

Pope Joan - National Youth Theatre Production

Dear Stephen,

I’m writing on behalf of the National Youth Theatre to let you know about an upcoming production that we think would be of interest to CFI London as well as your students. Pope Joan will be performed at St James’s Church, Piccadilly and tells the legendary story of the world’s first and only female pope. Controversial, moving and enthralling, audiences can witness an unfolding of unbelievable and prescient events that have profound parallels today.

Playing for a strictly limited season 31 August – 15 September, tickets start from just £12 and can be booked via the National Theatre:

Friday, 19 July 2013

Ed O'Bannon adds Six Current Football Players; Why no Basketball Players?

Ed O'Bannon has added six current football players as named plaintiffs to his lawsuit against the NCAA, EA and CLC. 

Why no current basketball players?  I explore in a new article for

Response to Randal Rauser's response to my response to his shoddy review

Randal Rauser has responded to my suggestion that his review of my book Believing Bullshit was pretty shoddy (though not as shoddy as Martin Cohen’s in the THES). Go here.

Understandable, I suppose. By combining selective quotation, misdirection and quite a lot of bluster, Rauser is quite successful at generating the impression I have been unfair to him.

A preliminary point re not responding to Rauser’s entire review. After disclaimers about what follows being nothing personal, Rauser moans that I only respond to 10% of his review. Sure I did. Because it is, to use Rauser’s own description of it, “bloated”.

I didn’t cherry-pick which bit to respond to. I just started at the beginning of the review and kept going till I felt I had expended enough effort in terms of hours and word count. Given the way Rauser packs in the muddles, misrepresentations, bad arguments, etc. it took me 2,500 words to unpack what was wrong with just the first 10% of Rauser’s review. I stopped at that point. I thought that pretty reasonable and am sorry if Rauser thinks otherwise.

In addition here are another 2,750+ words dealing with Rauser’s defence of just that first 10% of his review. So that’s 5,250 words I have now written (and we know what’s coming next, of course). Looks like full response to Rauser’s review will probably require I write at least 50k words. More than my entire doctoral thesis.

So to business. It seems to me Rauser makes three main points re my response, which I have attempted to gloss below (numbered, in bold).

1. Rauser claims he didn’t misrepresent me, and did deal with my main argument, re Wykstra-type appeals to mystery (if not in his actual review).

First, I pointed out Rauser criticises my objections to Wykstra-type appeals to mystery to immunize theism against the problem of evil, which he dismisses as “cursory” and “impotent”. In my response, I point out, accurately (Rauser has not disputed this), that Rauser actually mentions only the first of three criticisms that I make, the last of which I clearly flag as the most important. So Rauser makes my treatment look much more cursory than it is by failing even to mention, let alone deal with, my main argument. Moreover, I point out his attempt to deal even with the criticism he does mention fails.

So here’s Rauser’s response to my response:

“So ultimately Law is complaining because I failed to address his point on the evil God. As far as objections go, this is the very definition of ironic since I wrote an article responded to his evil God hypothesis the very day after I published this review. That article, titled “Stephen Law’s Evil God Hypothesis,” began like this: “There were a number of points that Stephen Law made in his book Believing Bullshit which I didn’t have time to address in my already bloated review. One of those was his so-called “Evil God hypothesis” (henceforth the EGH), a clever, if abortive, attempt to undermine theodicies (see pp. 24-27).” I then go on in the article to offer a rebuttal to this argument. So Law accuses me of distorting his argument by failing to address a point he made when I devoted a subsequent article (a day later) to that very point, a fact that he never mentions here. This isn’t just ironic. It’s downright hypocritical.”

I now encourage you, dear reader, to check two things. First, check what my main objection re Wykstra actually is. Interestingly, even though I quote it myself in my response, Rauser chooses not to quote my actual objection, but merely a passage running up to it that mentions the evil god challenge. He quotes just this preamble:

“The third point I make, which relates to the second, and which I explicitly say is the most significant of the three points, is that the same sort of appeal to mystery can be employed to defend belief in an evil god against the evidential problem of good.”

Below, directly following the above passage, is the actual objection re Wykstra-type appeals to mystery:

“I point out, what most of us intuitively recognise, that ‘we are justified in supposing there’s no evil god on the basis of the amount of good we observe. There are limits to the amount of good that can be put down to an evil god’s mysterious ways, and those limits are clearly exceeded by what we see around us’”

That's the part Rauser chooses not to quote. As we saw, Rauser claims he deals with this objection in a blog post he posted the next day.
Untrue. Go check yourself. Rauser’s blog post is here:

Here is the  thing to notice re that other blog post. What Rauser does in that other post is suggest that the EGC merely shows, at best, that belief in an evil god can be defended by reverse theodicies. But that's not to give us any positive reason to think there is an evil god, as there is reason to think that there is a good god (according to Rauser). But to say that about the EGC is not to address my objection above. My objection above is not that an appeal to mystery might similarly succeed in immunizing the evil god hypothesis against the problem of good, but rather that it clearly does not succeed, and thus, by analogy, nor does it succeed in immunizing the good god hypothesis against the problem of evil. Please note that this objection is never even mentioned by Rauser in his other blog post, let alone addressed.

[[Incidentally, Rauser’s other blog post also involves a fairly gross misrepresentation (spot a pattern here?) There, Rauser says I think theodicies are arguments for the existence of God - which is a “glaring misunderstanding of what theodicies attempt to do” - and that the evil god challenge (EGC) relies on that misunderstanding. Nope. That’s all wrong.]]

So, my complaint that Rauser misrepresents my critique of Wykstra-type appeals to mystery by failing even to mention let alone address my main criticism still stands. It stands even if we take a step back and include the contents of his other blog post.

What’s really going on here? Having been caught red-handed misrepresenting me and ignoring my main argument regarding Wykstra, Rauser says he deals with it in the other post because he deals with the EGC in the other post. Chances are, most casual readers will be bamboozled by the reference to the evil god challenge in both places into supposing that Rauser has indeed dealt with my main Wykstra point in his other post. Rauser’s bluster enhances the illusion. But the fact is, Rauser doesn’t deal with my objection in the other post (I don't say the bamboozling is deliberate btw. I suspect he has bamboozled himself too)

But really this is all bye-the-bye because if Rauser writes a review misrepresenting the contents of my book, and I complain about it, it’s no excuse for Rauser to exclaim. “Huh! I corrected that misrepresentation in another post.”

As we've seen, Rauser didn’t correct the misrepresentation in the other blog post. Obviously, no one reading the other blog post is going to think, “Ah, so Rauser missed out Law’s key response to Wykstra. Good of him to say that now”, are they?

But even if Rauser had clearly corrected the misrepresentation, that wouldn’t alter the fact that my complaint that Rauser’s review misrepresents my argument is entirely justified.

2. I don’t (properly? at all?) acknowledge in the book that atheists, etc. can be guilty of making these dodgy moves too.

In my response to his review, I point out Rauser doesn't make clear that I say that atheists, etc. can and do make these dodgy moves too. He gives the impression I think atheists are entirely immune. Which is untrue. Rauser quotes me responding thus:

“Anyhow, let me first point out that I say very clearly in the book that atheists etc. are also prone to such dodgy moves…. Someone reading Rauser’s review might well conclude I assume that naturalists, atheists etc. are immune. I don’t assume that.”

Rauser then immediately adds, sarcastically:

“Yeah, great. Let me quote again a passage I cited in my original review. There Law states the book is aimed: “to help immunize readers against the wiles of conspiracy theorists, cultists, political zealots, religious nutcases, and promoters of flaky alternative medicines by setting out some key tricks of the trade by which such self-sealing bubbles of belief are maintained.” (11) Funny, I don’t see atheistic zealots or naturalistic nutcases mentioned. Everyone listed here is part of the out-group.”

Rauser's "in-group" are the atheists, humanists, naturalists, etc. Well, obviously many atheists can be political zealots, some humanists are promoters of flaky alternative remedies, and some naturalists are indeed conspiracy theorists. So I’m obviously not suggesting the members of these groups are immune.

But I guess what Rauser is getting at is that atheism and naturalism are not themselves mentioned as being IBHs in the above quotation from p.11. But then neither are mainstream religions. This early section is intended only to give some fairly unambiguous examples of intellectual black-holes that most of us are likely to recognise as such. The above passage obviously does not commit me to the view that only these groups employ such strategies (immunizing appeals to mystery, etc.) in defence of their group-beliefs, as I go on to explain two pages later:

“almost all of us engage in these strategies to some extent, particularly when beliefs to which we are strongly committed are faced with a rational threat. And in fact there may be little wrong in using some of them in moderation”. What transforms a belief system into a black hole is the extent to which such mechanisms are relied on in dealing with intellectual threats and generating an appearance of reasonableness.” (p.13)

So, I make it clear in the book that I think we’re pretty much all vulnerable to these dodgy moves – including atheists and naturalists, and even to, some extent, about their own atheism, naturalism, etc. What concerns me, as I say, is the extent to which belief systems rely on them. And it seems to me that conspiracy theorists, cultists, religious zealots, etc. are very much more prone to this sort of thing than are most.

What really bothers Rauser, of course, is that, while I obviously don’t say that every religious belief system is an IBH (which I make explicit on p.13), I do consider religious belief systems rather more prone to becoming IBHs than is the average belief system. I give many examples of how many (if not all) religious belief systems do regularly appeal heavily to various of the eight suspect mechanisms covered in the book. I provide a breakdown at the end of the book illustrating how two varieties of religious belief system in particular (entitled a certain sort of “sophisticated” theology and my evangelical friend’s beliefs) qualify as IBHs. In addition, I explain why other religious belief systems such as Young Earth Creationism and Christian Science also qualify. I also explain in the introduction why a belief in gods (and also ghosts and other invisible agents), in particular, is likely to be more prone to drifting into IBH than is the average belief system. [pp. 15-19]).

I consider it pretty obvious that religious belief systems, as a broad category, are rather more prone to drifting into (sometimes dangerous) IBH territory than is your average belief system. Even many religious people recognize this. Of course they don’t think of their own variety of religious belief as an IBH (and it may not be). But they will point to various cults, Young Earth Creationism, Christian Science, Mormons, Ancient Religions, Scientology, Bible Innerancy, the Taliban, etc. etc. and say “Er, well, yes, of course those varieties of religious belief are pretty darn unreasonable and in many cases loopy!”

We all recognize, or should recognize, that religion possesses a gobsmacking power to get otherwise smart, well-educated people to believe absurd things – witness the 45% or so of U.S. citizens who believe the universe is just 6,000 years old and that this is good science.

But of course, even if religious belief systems are prone to drifting into IBHs, that doesn’t establish atheism isn’t similarly prone. It’s here that Rauser now seems tempted to strike…

3. Atheists also (routinely?) appeal to mystery to counter evidence/arguments against what they believe – example Colin McGinn – and Law doesn’t say there’s anything wrong with them doing so. Yet Law doesn’t class atheism, etc. as an IBH/bullshit. Bias! Double standard!

Rauser cites philosopher Colin McGinn, who says the philosophical problem of consciousness may be necessarily insoluble due to our cognitive limitations (McGinn argues for this in fact). Well, yes, here is one philosopher, who is an atheist, and who argues that a particular philosophical problem may be necessarily insoluble.

But note, first, McGinn is not an example of an atheist making an appeal to mystery in order to immunize atheism against a seemingly powerful counter argument/evidence. Atheism never gets a mention by McGinn, as far as I remember. McGinn is concerned with naturalism.

So, just to be clear, note that Rauser has not come up with an example of an atheist trying to deal with a significant evidential threat to atheism by appealing to mystery. (Indeed, even the sub-problem of consciousness specifically for naturalism is not a problem for atheism as atheists need not be, and many are not, naturalists - I’m not,).

Now, I pointed out in my response to Rauser’s review that the problem of consciousness per se does not favour anti-naturalism over naturalism or theism over anti-theism because both sides in these debates find consciousness deeply problematic. In his response to my response, Rauser now points out that these different philosophical positions find consciousness problematic for different reasons (which of course I knew), and that naturalism does face a particular intellectual threat that McGinn is indeed trying to deal with by appealing to mystery. That’s Rauser’s point.

So Rauser does not deny that the problem of consciousness per se does not constitute any sort of argument against naturalism or atheism in the way the problem of evil constitutes a seemingly very powerful argument against Rauser’s brand of theism. That’s good. It’s true.

But Rauser does want to say that McGinn is here trying to defend naturalism against a sub-problem of consciousness that is specifically a problem for naturalism. Is that an illegitimate appeal to mystery? Rauser’s point, I suppose, is that, if I am to be consistent, I must say that it is illegitimate, but I don’t/won’t say that it is illegitimate and indeed it isn’t illegitimate. Double standard! That’s Rauser’s objection.

But of course I might say it is illegitimate. Depends on the details. Suppose McGinn makes a reasonable case for saying this sub-problem of consciousness is necessarily unsolvable. That’s Rauser’s view, as we’ve seen. Rauser says, “McGinn certainly makes a reasonable case for our cognitive limitations”. Such a case could then contribute significantly to a larger case for saying McGinn’s appeal to mystery is legitimate. I agree with that.

However, my point with respect to Wykstra’s appeal to mystery is, precisely, that Wykstra doesn’t make a reasonable case for it. And indeed the move is intuitively highly implausible. That’s why I suggest it’s illegitimate. So, no lack of consistency from me there.

On the other hand, suppose that as a response to the sub-problem of consciousness that is a problem specifically for naturalism McGinn’s move ise dubious. If McGinn’s case for saying the problem is likely to be unsolvable given naturalism turns out to be poor, then his appeal to mystery is indeed suspect. Further, if McGinn were to make a whole bunch of similar immunizing, mystery moves in order to defend naturalism without justifying them, then, yes, McGinn’s version of naturalism would now be looking like an IBH. That’s exactly what I would then say about McGinn’s brand of naturalism. And it would be the right thing to say, not the wrong thing to say.

So Rauser’s got no argument against me here. I’m not in any sort of trouble with McGinn.

Rauser may still say, “But why did you not mention naturalism in your book? Why did you not expose it as an IBH? Bias!” Well I don’t attempt or pretend to cover all varieties belief systems that are, or are close to being, intellectual black holes. There are possible scientific examples I don’t mention (string theory?). There are economic examples too (which I regret not mentioning, actually – given the way our economy has just been trashed by what is, surely, an intellectual black hole of the economic variety). There may be philosophical examples as well. Rauser can argue if he likes that belief in naturalism has, in certain quarters at least, become an IBH. I’d have no particular problem with that as I’m not a naturalist. Same might well be true of dualism. I didn’t mention that either, did I? Bias? Obviously not.

So, to sum up, Rauser presents no case here for saying atheism is any sort of IBH, or even come up with one example of an atheist making a dodgy appeal to mystery in defence of atheism (though I don’t doubt they exist). Nor am I guilty of any obvious double-standard or bias in not including naturalism and atheism in my list of obvious IBHs (I didn’t include mainstream religions or dualism either). Nor is it true that I say atheists (and naturalists) are immune either to making such suspect moves or falling into IBHs, as Rauser’s original review suggested. Nor does McGinn’s position constitute any sort of counter-example to or problem for anything I say in the book.

That’s another 2,750 words. So I have now devoted over 5,250 words to dealing with just 10% of Rauser’s review… Jeez.

Thursday, 18 July 2013

Videos from the CFI Conference on Scientism.

Are available on youtube. For some reason I cannot embed them. The links are:

Wednesday, 17 July 2013

My response to William Lane Craig's review of my paper on the existence of Jesus

A while back, William Lane Craig responded to an argument of mine that was published in 2011 in Faith and Philosophy in a paper called “Evidence, Miracles, and The Existence of Jesus”. (Craig’s response appears on his Reasonable Faith website here).

In fact, Craig largely ignores the various arguments in my paper, and focuses instead in refuting arguments it does not contain. If you want to read the paper to check, it’s available here.

Richard Carrier has also produced an online breakdown of Craig’scritique of my paper. Worth reading. I reference it a few times below.

Below is Craig’s critique with my comments added in bold. 

In his blog, atheist philosopher Stephen Law formulated the following skeptical argument against Jesus' existence:
1. Extraordinary claims require extraordinary evidence. In the absence of extraordinary evidence there's excellent reason to be skeptical about the claims.
2. There is not extraordinary evidence for any of the divine/miraculous stuff in the NT documents.
3. Therefore (from 1 and 2), there's excellent reason to be skeptical about those extraordinary claims.
4. Where testimony/documents combine both mundane and extraordinary claims, and there's excellent reason to be skeptical about the extraordinary claims, then there's pretty good reason to be skeptical even about the mundane claims, at least until we possess some pretty good independent evidence of their truth.
5. The NT docs combine extraordinary and mundane claims about Jesus.
6. There's no pretty good independent evidence for even the mundane claims about Jesus (such as that he existed).
7. Therefore (from 3, 4, 5, and 6), there's pretty good reason to be skeptical about whether Jesus existed.
I'd like to know your opinion about this argument. I think a number of premises are problematic, both philosophically and historically. For example, premise 6 seems to be false on pure historical grounds (independent sources, even outside the NT, attest Jesus' crucifixion, which implies his existence. And certainly the crucifixion is a pretty "mundane" claim, in Jesus' time).
Best regards,


You’ll remember that this issue came up briefly in my debate with Stephen Law in Central Hall, Westminster, last October. In response to my claim that “Dr. Law has recently defended the claim that Jesus of Nazareth never even existed,” Law responded as follows:
Law: I've never said, by the way, that I've never argued that Jesus doesn't exist.
Craig: No, I said you defended the claim. I was careful about that.
Law: That Jesus doesn't exist?
Craig: That—I said you defended the claim that—something to the effect that—Jesus of Nazareth didn't exist.
Law: No.
Craig: In your argument in your article in Faith and Philosophy,1 you give a seven point argument—
Law: Yeah . . . That's not my view. My view is—The argument that I gave in that piece in Faith and Philosophyjournal was that it looks like there's a good philosophical case for remaining neutral. I mean, we just can't be sure one way or the other, and that's not at all the same thing as defending the view that Jesus wasn't a historical individual.
Craig: All right! So agnosticism about the reality of Jesus. . . . All right!
Even if Law’s final position is agnosticism about Jesus’ existence—itself an indefensible position—, it’s evident that his agnosticism is based upon the success of the above argument for being sceptical that Jesus ever existed.

The above argument, outlined by Craig, is not the argument I published in the Faith and Philosophy article. It's an argument taken from an earlier 2008 blog post, which you can view here. That blog post “sketched out” (as I put it there) the “bare bones” of an argument I was developing for the benefit of someone who commented on a previous post.

The subsequent academic paper, published three years later (the paper Craig is referring to) presents a developed, modified version of the argument. The paper also offers arguments in support of key components of the argument, especially premises (2) and (4). 

When I first encountered this article in my debate preparation, my first thought was that only a philosophy journal would publish such a piece! 

Craig here acknowledges he has encountered my actual article, and not just my earlier blog post of 2008. Good. He should address my actual article, not a sketchier, early blog post.

This article would never have made it past the peer-review process for a journal of New Testament or historical studies.

Quite possibly true. In the article, I challenge the standards and criteria employed by many of those engaged in New Testament Studies. The paper begins by clearly pointing this out. The opening lines are:

“The vast majority of Biblical historians believe there is evidence sufficient to place Jesus’ existence beyond reasonable doubt. Many believe the New Testament documents alone suffice firmly to establish Jesus as an actual, historical figure. I question these views.”

Indeed, I go on to question three of the main criteria Biblical historians use in arriving at the conclusion that Jesus’ existence is established beyond reasonable doubt.

It’s obviously hopelessly question-begging, as a response to an argument that questions the authority/expertise of those working in a certain field, to appeal to their authority. If I published a paper arguing on philosophical grounds that the methodology of homeopaths is flawed and their conclusions therefore untrustworthy, it obviously won’t do to say in response, “Bah Humbug! The homeopaths say this is rubbish!” Craig is making a no less question-begging move here.

Even a radical sceptic like Bart Ehrman savages the so-called “mythicists” who claim that we have no good evidence that Jesus of Nazareth was a real person:

A mythicist asserts that Jesus is a mythical figure. As Craig acknowledges, I do not assert that. I remain neutral on that matter. Indeed, in my paper I say that Jesus’ existence might be a bit more probable than not. My suggestion (made quite tentatively) is merely that Jesus’ existence has not been established beyond reasonable doubt.

Few of these mythicists are actually scholars trained in ancient history, religion, biblical studies or any cognate field, let alone in the ancient languages generally thought to matter for those who want to say something with any degree of authority about a Jewish teacher who (allegedly) lived in first-century Palestine. . . . But even taking these into account, there is not a single mythicist who teaches New Testament or Early Christianity or even Classics at any accredited institution of higher learning in the Western world. And it is no wonder why. These views are so extreme and so unconvincing to 99.99 percent of the real experts that anyone holding them is as likely to get a teaching job in an established department of religion as a six-day creationist is likely to land in a bona fide department of biology.2

As I say, Craig’s attempt to lump me in with the mythicists is disingenuous. He has already acknowledged I’m not a mythicist. He’s just trying to tarnish me by associating me with the mythicists, who, at least in the minds of many of Craig’s followers, are cranks and loons.

Law’s argument for scepticism about Jesus would not be taken seriously by bona fide historical scholars.

It would probably be dismissed out of hand by many. Some would hate it. However, as I pointed out above, my argument questions their methods and authority. So appealing to their authority constitutes a question-begging response to my argument.

Having question-beggingly appealed to the authority of those whose authority my argument throws into question, and then attempted to tarnish me by lumping me in with those loony mythicists, Craig now finally gets round to some actual critique of my argument – hoorah!

No wonder! Almost every premiss in this argument is unjustified or false. Take (1), for example:
1. Extraordinary claims require extraordinary evidence.
This sounds so commonsensical, doesn’t it? But in fact it is demonstrably false. Probability theorists studying what sort of evidence it would take to establish a highly improbable event …

Notice what just happened there. Craig has switched from talking about “extraordinary claims” to talking about “improbable event(s)”. Now, we know there’s no problem about confirming by just a bit of testimony the occurrence of an improbable event. E.g. my friend ecstatically claims to have won the lottery. A couple of other friends independently confirm they have seen his winning stub. That’s good enough evidence for me that he’s won, despite the fact that my friend’s winning is 14 million to one against.

So, I deliberately don’tcharacterize an “extraordinary claim” as just a claim that something improbable has happened. I certainly don’t argue that if an event is improbable then it can’t be reasonable to believe it on the basis of a fairly modest bit of testimony. Improbable events like so-and-so winning the lottery happen all the time and are rightly accepted on that basis.

In fact, I am deliberately vague about what “extraordinary claim” means. I just say that the claim that a supernatural miracle has occurred constitutes one. That suffices for the purposes of my paper.

I then provide an argumentthat such miracle claims do indeed require much stronger evidence than that required to render reasonable other more mundane claims. My argument is based on a thought experiment: the Ted and Sarah case.

“Suppose I have two close friends, Ted and Sarah, whom I know to be generally sane and trustworthy individuals. Suppose that Ted and Sarah now tell me that someone called Bert paid them an unexpected visit in their home last night, and stayed a couple of hours drinking tea with them. They recount various details, such as topics of conversation, what Bert was wearing, and so on. Other things being equal, it is fairly reasonable for me to believe, solely on the basis of their testimony, that such a visit occurred.

But now suppose Ted and Sarah also tell me that shortly before leaving, Bert flew around their sitting room by flapping his arms, died, came back to life again, and finished by temporarily transforming their sofa into a donkey. Ted and Sarah appear to say these things in all sincerity. In fact, they seem genuinely disturbed by what they believe they witnessed. They continue to make these claims about Bert even after several weeks of cross-examination by me.

Am I justified in believing that Ted and Sarah witnessed miracles? Surely not. The fact that Ted and Sarah claim these things happened is not nearlygood enough evidence. Their testimony presents me with some evidence that miracles were performed in their living room; but, given the extraordinary nature of their claims, I am not yet justified in believing them.”

Craig ignores this argument.

I also go on to supply a furtherjustification for the principle that such extraordinary claims require extraordinary evidence. I say: 

when it comes to assessing evidence for the Jesus miracles and other supernatural events, we do so having now acquired a great deal of evidence about the unreliability of testimony supposedly supporting such claims. We know – or at least ought to know by now – that such testimony is very often very unreliable (sightings of ghosts, fairies, and of course, even religious experiences and miracles, are constantly being debunked, exposed as fraudulent, etc.).”

Craig fails to mention all this.

… came to realize that if you just weigh the improbability of the event against the reliability of the testimony, we’d have to be sceptical of many commonly accepted claims.

As I say, my argument above doesn’t rely on the thought that such events have a low prior probability. Craig is here trotting out a standard apologetic critique of an argument I did not give and ignoring the arguments I did give.

Rather what’s crucial is the probability that we should have the evidence we do if the extraordinary event had not occurred.3

Yes. This is certainly crucially important when assessing the degree to which evidence supports a hypothesis. Craig knows I know this, of course, because I myself made this very point to Craig in our debate, with respect to the resurrection (a transcript of what I said is actually posted on Craig’s own website). I said:

“Evidence supports a hypothesis to the extent the evidence is expected, given the hypothesis is true, and unexpected otherwise. The absolutely crucial point to note is this: we have good to reason to expect some baffling, very hard to explain, in mundane terms, reports to crop up occasionally anyway, whether or not there are any miracles, or gods, or flying saucers.
So the fact that an otherwise baffling, hard to explain case has shown up, provides us with little, if any, evidence that a miracle has occurred.”

This can easily offset any improbability of the event itself. In the case of the resurrection of Jesus, for example, this means that we must also ask, “What is the probability of the facts of the empty tomb, the post-mortem appearances, and the origin of the disciples’ belief in Jesus’ resurrection, if the resurrection had notoccurred?” It is highly, highly, highly, improbable that we should have that evidence if the resurrection had not occurred.

Well, this is precisely what I question. I questioned it in our debate (and Craig did not respond to my point in that debate). I also question it in my paper, in the above quotation. We should expect these otherwise-hard-to-explain-in-mundane-terms miraculous claims to be made every now and then, even if there are no miracles. 

Summary: Craig has entirely ignored my arguments for Sagan’s principle. Instead he has chosen to refute an argument I didn’t give.

(Though let me add that I acknowledge that a low prior probability of a hypothesis will require an equally improbable bit of testimony to neutralize, and that, as a matter of fact, resurrection miracles do indeed have a quite extraordinarily low prior probability (unlike people winning lotteries, which happens all the time) and so will require no less extraordinarily improbable evidence even just to cancel out that low prior, let alone confirm the hypothesis to the extent that it is placed beyond reasonable doubt [this would at least partially account for the intuitive verdict in the Ted and Sarah case] Craig’s use (elsewhere) of the lottery example to try to show that miracles can similarly reasonably be accepted on the basis of a bit of otherwise-hard-to explain testimony just overlooks this fact. Carrier spells this out here.).

And how about (2)? I suppose it depends on what you mean by “extraordinary,” but the evidence for the facts of the empty tomb, Jesus’ post-mortem appearances, and origin of the disciples’ belief is such that the majority of scholars, even radical critics like Ehrman, are convinced of their historicity.

Craig’s just repeating his point that Biblical Scholars think this sort of evidence is good enough. Sure, many do. My argument is they aren’t justified in doing so. Pointing to the conclusions of scholars whose methods I’m arguing are faulty constitutes a question-begging response to my argument.

Moreover, there is no naturalistic theory proposed as an explanation of these three facts which has garnered the allegiance of a significant number of scholars. So the evidence for the central miracle of the New Testament is pretty extraordinary—even though, as mentioned above, that is not a pre-requisite of the verdict of historicity.

Yet again, Craig just appeals to the authority of those whose expertise is being questioned. Moreover, as I pointed out in both our debate and also very clearly in my paper, it clearly won’t do to say that if no plausible-looking mundane explanation for testimony of miraculous event is available, it’s then reasonable to believe the testimony. I say:

“Notice, incidentally, that even if I am unable to construct a plausible explanation for why these otherwise highly trustworthy individuals would make such extraordinary claims – it’s implausible, for example, that Ted and Sarah are deliberate hoaxers (for this does not fit at all with what I otherwise know about them), or are the unwitting victims of an elaborate hoax (why would someone go to such extraordinary lengths to pull this trick?) – that would still not lend their testimony much additional credibility. Ceteris paribus, when dealing with such extraordinary reports – whether they be about alien abductions or supernatural visitations – the fact that it remains blankly mysterious why such reports would be made if they were not true does not provide us with very much additional reason to suppose that they aretrue.”

Craig just ignores my argument.

Premise (4) has little to commend it, I suspect. We may be cautious in such cases—but sceptical? Legends blend historical claims with non-historical marvels, and the presence of the marvels doesn’t imply that we should reject the historicity of the mundane claims.

This comment is particularly interesting. The (4) Craig is discussing here is taken from a 2008 blog post sketch, not my actual paper. This is (4) in my actual paper:

(4) P2 Where testimony/documents weave together a narrative that combines mundane claims with a significant proportion of extraordinary claims, and there is good reason to be sceptical about those extraordinary claims, then there is good reason to be sceptical about the mundane claims, at least until we possess good independent evidence of their truth.

(note the italics just added). Now compare this with what Craig is criticising here:

(4) P2 Where testimony/documents combine both mundane and extraordinary claims, and there's excellent reason to be skeptical about the extraordinary claims, then there's pretty good reason to be skeptical even about the mundane claims, at least until we possess some pretty good independent evidence of their truth.

You will see that a crucial caveat is missing – a caveat concerning the proportion of extraordinary claims woven into the narrative. My paper carefully explains the importance of this caveat, and spells out in particular that just because a legend contains marvels does not mean we should reject the historical claims. For example, I say:

“After all, Alexander the Great was also said to have been involved in miracles. Plutarch records that Alexander was miraculously guided across the desert by a flock of ravens that waited when Alexander’s army fell behind.[i] Should the presence of such extraordinary claims lead us to condemn everything Plutarch’s has to say about Alexander as unreliable? Obviously not.”

What is crucial is the extent of the contamination of the narrative with extraordinary claims. The Jesus narrative is highly contaminated and the central episode is a miracle. That is why we should be skeptical, not because it happens to contain some miracle claims.

So, Craig here runs a criticism of (4) that my academic paper itself discusses in some detail and to which the argument presented in that paper is actually immune. Why would he do that if he has read my paper? Baffling.

But premiss (6) is the most obviously false premiss in the argument. With respect to extra-biblical evidence Law is just misinformed. Jesus is mentioned in such ancient sources as Tacitus, Josephus, Mara bar Serapion, and Jewish rabbinic sources.

Yes, I acknowledge all this in the opening sections of the paper.

If you’re interested in reading these, Robert Van Voorst has collected these sources in his book Jesus outside the New Testament.4There is no reason to think that all of these sources are dependent exclusively on Christian tradition. For example, according to Van Voorst “the wording of almost every element” of Josephus’ original text “indicates that Josephus did not draw it, directly or indirectly, from first-century Christian writings.”5

In order to establish beyond reasonable doubt the existence of Jesus these passages would have to be conclusively shown not to be dependent on Christian sources. So the onus is on Craig to show that, not on me to show otherwise. And, as I point out in the paper, there is controversy, not only about the extent to which the Josephus passages have been tampered with by Christians, but also about the extent to which we can be confident Josephus’s information ultimately traces back to non-Christian sources. Given such controversy, reasonable doubt enters in regarding the independence of the testimony.
Carrier is good on Craig’s appeal to Josephus here, by the way. I encourage you to read what he says in this section:

Worse, what Law doesn’t appreciate is that the sources in the NT itself are often independent of one another, so that we have independent evidence for many of the mundane, not to speak of the miraculous, events of Jesus’ life. It is precisely that multiple, early, independent attestation to many of the events of Jesus’ life that has persuaded historical scholars of the historicity of many of the events in the Gospel narratives. For example, we have references to Jesus’ burial in five independent sources and indications of the discovery of his empty tomb in no less than six independent sources, which is really quite extraordinary.

Here Craig appeals to the criterion of multiple attestation. That criterion is discussed and criticised in some detail in my paper. Craig has just ignored my arguments here. In any case, Craig is also guilty of bootstrapping here: the reliability of these sources is precisely what the argument of my paper throws into doubt.

But there are more reasons for denying (6):
  • Principle of Sufficient Cause: Law says that Alexander the Great must have existed because of the military dynasties left in his wake.

I said there is good evidence Alexander existed, including (but not restricted to) archeological evidence of the dynasties left in his wake.
  • But in the same way, Jesus must have existed because of the first-century Christian movement left in his wake. Attempts to explain this movement away mythologically have failed.

Invading armies invariably have real leaders who exist. Religious movements are built around individuals who may or may not exist. Clearly, the existence of a Christian movement is not evidence for a real Christ in the way the existence of an invading army is evidence for a real military leader. The suggestion that such a movement is likely to have been built around a real as opposed to a fictional person has an entire section of my paper devoted to it. Craig here just ignores the argument it contains.

And in any case we have excellent non-miracle-contaminated independent evidence for Alexander. Not so for Jesus. Carrier is very good on Craig’s attempt to draw an analogy between evidence for Alexander and Jesus. I recommend you read at least this section of Carrier’s online paper:
  • Embarrassment: Jewish Messianic expectations included no idea of a Davidic Messiah who, instead of throwing off Israel’s enemies and establishing David’s throne in Jerusalem, would be shamefully executed by them as a criminal. Jesus’ crucifixion was something the early church struggled to overcome, not something it invented. Jesus’ crucifixion is one datum upon which all historical scholars, even the most radical, agree.

I explicitly address and argue against the criterion of embarrassment in my paper. Craig just ignores my argument here.
  • Archaeology: Law accepts the historicity of Alexander the Great partly because of the archaeological evidence for the dynasties he founded. But how about Jesus? The Church of the Holy Sepulchre in Jerusalem has a very strong historical claim to be built over the actual tomb of Jesus of Nazareth. In 326-28 the mother of the Emperor Constantine, Helena, undertook a trip to Palestine and enquired where the tomb of Jesus was located. The locals pointed to a spot where a Temple to Aphrodite had stood for over a century. We have here a very old tradition as to the location of Jesus’ tomb which is rendered probable by the facts that (i) the location identified was inside the extant walls of the city, even though the NT says it was outside the city walls. People didn’t realize that the spot was, in fact, outside the original walls because they did not know the original walls’ location. (ii) When Constantine ordered the temple to be razed and the site excavated, lo and behold, they dug down and found a tomb! But if this is the very tomb of Jesus, then we have archaeological evidence for his existence.

What we have here is evidence that this is what Christians a few hundred years after Jesus supposedly lived believed regarding his tomb. This is hardly good evidence that Jesus was a real person, particularly when there is good reason to be skeptical about what early Christians have to say about Jesus – which is what my paper actually argues.

In sum, Law’s argument is not a good one. Scepticism or even agnosticism about the historicity of Jesus of Nazareth is groundless. As Ehrman concludes, “Whether we like it or not, Jesus certainly existed.”

In summary, Craig’s critique largely ignores the arguments that my paper does contain, and instead criticises arguments it does not contain. In particular, he criticises a crude version of premise (4) that’s not even in my paper; indeed, as the paper itself explains at some length, the version of (4) that is in my paper is pretty obviously immune to his criticism.

Had Craig submitted this critique to any reputable journal of philosophy, it would surely have been rejected out of hand.