Larry Craig, Coordination Crimes, and the Weirdest Law School Paper Ever

Thom Lambert —  4 September 2007

One question has come up several times in conversations I’ve had about the very sad Larry Craig matter: What’s the deal with the foot-tapping? I’m surprised at how many people were unaware of this signal. The women, I suppose, could be forgiven. But the ignorant men are not so easily excused. Do they just ignore restroom graffiti? The meaning of that signal has been spelled out on many a toilet stall.

In any event, this question reminded me of a paper I wrote in law school. The paper was for a seminar called “Theories of Non-Legal Enforcement,” which was co-taught by Richard Craswell and Eric Posner. At the time (spring of 1998), the idea of using social norms rather than law to police behavior was all the rage at the University of Chicago – so much so that Jeffrey Rosen published an article in the New Yorker describing a “New Chicago School” that was focused on harnessing the power of norms. (More about the New Chicago School here. BTW, I thought the attribution to Chicago was a bit unfair, given that Yale’s Robert Ellickson really got the norms ball rolling with his fantastic book, Order Without Law.)

At the time I was writing the seminar paper, I was living in Chicago’s East Lakeview neighborhood (a.k.a. Boystown), where I was regularly exposed to the mating rituals of the homosexual male. Observing my subjects’ behavior in mixed gay/straight environments such as the gym, the El train, and the neighborhood coffeeshop (a Caribou Coffee referred to as “Caricruise”), I realized gay men face an interesting coordination problem: they must signal their orientation in a manner that will be interpreted only by individuals who are similarly oriented (or are at least gay-friendly). Now, the need to send this sort of coded signal has decreased as public hostility toward homosexuality has lessened and opportunities for meeting gay people (e.g., gay bars, Internet options) have proliferated. Nonetheless, coded signaling is still used in mixed gay-straight environments. After all, no gay guy wants to hit on a meathead who turns out to be straight.

So how does the signaling work? The key is that the signal must be comprehensible only to those who are similarly situated. Accordingly, two signals – the long glance and the glance-back – have proven particularly robust. The former signal works because Americans (but, be warned, not Europeans!) adhere to a rigid norm of glance length. It is bad form to hold a stranger’s glance for more than a split second. But a person can know that another has held his glance “too long” only if the person himself has held the other’s glance too long. Thus, the long glance will be recognized only by one who has also engaged in a long glance. Voila–the perfect coded signal!

The glance-back, which is also common among straight folk, is useful for coordinating while walking. As one subject passes the other, he makes brief eye contact but doesn’t alter his gait. After passing, he counts to three and then glances back. If the other glances back as well, we have a match; otherwise, the signal goes unrecognized.

In addition to these enduring classics, gay people have historically attempted other coordination signals. In the 1920s and 30s, for example, wearing a red tie signaled one’s homosexuality (politicians beware!). When I was a kid, it was the right earring. In the 70s and 80s, many gay men recognized an elaborate code based on handkerchiefs. The color and placement of a hanky could be altered to signal all sorts of things.

There was, though, a problem with all these signals: they could be decoded or diluted. The right earring, for example, ceased to be a useful signal when mainstream America learned what it meant. The red tie failed because of dilution – an excessive number of false positives reduced the signal’s usefulness. (Incidentally, my research revealed that the Chicago vice-squad once posted red tie-wearing imposters on State Street. While they were presumably attempting to catch offenders, this strategy undoubtedly had dilutive effects.)

So what does all this have to do with “theories of non-legal enforcement”? There is a class of anti-social behaviors that involve the sort of coordination problem gay men have historically faced: the behaviors require multiple participants who must identify each other without tipping off others. Examples would include prostitution, drug buying and selling, gang activity, and “public lewdness” a la Sen. Craig. A “legal” approach to enforcing the norm against such conduct would be to police the behavior itself. “Non-legal” enforcement, I argued, might be accomplished by decoding or diluting the signals perpetrators use to coordinate, thereby thwarting their efforts.

A number of police departments have taken this tack with gang activity. I argued that they might extend the approach to drug, prostitution, and lewdness crimes. They might, for example, post signs decoding the meaning of a place (e.g., “This restroom is a popular meeting spot for individuals attempting to engage in lewd behavior. That’s what loiterers are likely doing.”) or signal (e.g., “Be warned: Drivers flashing their lights in this parking lot are attempting to purchase drugs!”).

The great risk, of course, is that the decoding strategy would perversely strengthen the symbol by educating potential perpetrators who otherwise wouldn’t know how to coordinate. To use the language of the New Chicago School, the authorities might unwittingly become “norm entrepreneurs,” strengthening a norm that is used to accomplish anti-social ends.

Who knows which effect would dominate. It would likely differ from situation to situation depending on the ratio of potential perps to potential sanctioners.

Professors Craswell and Posner, if not convinced, were at least amused. I got an A on the paper.

Thom Lambert

Posts

I am a law professor at the University of Missouri Law School. I teach antitrust law, business organizations, and contracts. My scholarship focuses on regulatory theory, with a particular emphasis on antitrust.

6 responses to Larry Craig, Coordination Crimes, and the Weirdest Law School Paper Ever

  1. 

    I think the long stare is international as well. Thom, are you saying the Europeans have a *longer* glance-length tolerance level? I got “cruised” in Rome Italy with a long stare; I smiled and kept walking…Being flattered this way was one of the highlights of the trip for me, although Eric was not amused. Hope you’re doing well, Thom!

  2. 

    The glance-back must be The International Signal of Romantic Interest. An insanely popular Russian song goes like this: “I turned around to see whether she turned around to see whether I turned around.”

  3. 

    Interesting point, Brett. Here’s some evidence that the signal has been decoded.

  4. 

    Probably the point is implicit in the post, but it’s worth noting explicitly that all the publicity over Craig has had the effect of decoding this particular set of signals. So now we will get an experiment as to what effect that decoding has.

  5. 

    Thanks for the comment, mkelly. Peter Smith makes a similar argument here.

  6. 

    Interesting observation about Larry Craig that I heard listening to a gay-audience radio show:

    Craig was arrested essentially for signaling another person in a public bathroom, ‘Yes, I’d like to have sex.’ No sex did actually occur, and apparently there was no mention of exchanging money as part of the act, either. Someone merely asked the senator (non-verbally) if he wanted to have sex, and he said yes.

    Now, if a woman sitting next to me in some unisex bathroom tapped my foot, or did something similar on the subway, or otherwise sent the nonverbal signal, ‘Do you want to have sex?’ would either of us be arrested? Probably not. Things like this happen in bars on Saturday nights; it’s called flirtation, even if it’s extremely forward.

    Now, I still think Craig is a hypocrite for his anti-gay views and is lying about not understanding what a guilty plea means, and, alas, not nearly as many women as I’d have liked came on to me in bars in my single days. But it is food for thought.