As I was walking down the escalator this evening to board the train home from work, a woman came down behind me, and seeing that there was a train arriving at the platform, she elbowed me aside and bolted down the escalator, also pushing aside a little girl mistakenly standing on the left. Alas (for her), she got there too late, just as the doors were closing for the last time. She ran and banged on the first door of the front car, as the driver stuck his head out of the window for the "all clear!"

"Let me in!" she screamed at him.

"Running late," he said as the train sped off.

"Asshole!" she yelled.

So I was going to respond to the Anti-realist's latest defense of bills of attainder, when I discover that Lawrence Solum has done it for me.

If you read Eugene Volokh's post on why he's a party line voter, be sure not to neglect Jacob Levy's much earlier discussion of the same topic:

Here are the intuitions pulling in two directions. On one hand, parties matter.

On the other hand, it's strategically important to encourage those elements of the opposing party that have views most like one's own, for two reasons. One is so that the opposing party perceives electoral returns in shifting toward your view. The other is to prevent your own party from taking you for granted. . .

(read more)

Nothing much to say about it but here's a fun interview with Judge Richard Posner from CNBC last Monday.

(via the FIREARMSREGPROF listserv): An intriguing story claiming Gun Statistics Expert John Lott Victim of Identity Theft while the more level-headed point out that the site is really just a parody. But for a truly amusing anti-Lott site, try Who is Mary Rosh?

Notes: If you're not up on the John Lott controversy, you're not missing much; he's a pro-gun economist who's been challenged on various methodological and personal counts. I don't know enough about the accusations or the evidence to voice a view on whether he is more sinned against or sinning.

Sara Butler makes a brief reappearance on Diotima to continue her Ampersand Blogging. She makes two points-- she defends Illinois's rape law (which holds that a woman (or a man) can revoke consent at any time) and she concurs with Dahlia Lithwick's assessment that rape law in general is screwed up. I agree. But what to do?

Somebody with more prosecutorial experience than I should correct me here, but my understanding is that part of what makes a rape-law-repair so difficult is that the current system is messed up in both directions. The law doesn't require much in the way of proof, but prosecutors and juries often do. The trouble is that, for date-rape and acquaintance-rape, the entire trial usually turns on the question of "did she consent?" And short of tape-recorders, video-cameras, or Ms. Lithwick's suggestion of "mandatory threesomes" there's simply no circumstantial evidence to answer the question, most of the time.

As I understand it, Ms. Lithwick suggests we might shorten rape sentences, under the theory that the jury would be more willing to convict on less-than-concrete evidence if the penalty weren't so severe. This doesn't seem like a great idea to me. Better to let N guilty men go free, after all . . . and even reducing the criminal penalty so that we can bandy the sentence about a little more flippantly won't do much to erase the social stigma of being a rapist.

So it's a dilemma. I think that this very problem is what leads states to forbid assisted suicide and the like. It's hard enough to figure out if Person A consented to act X with Person B when you've got Person A saying one thing and Person B saying the other. Imagine how much harder a fair trial gets when Person A isn't even around to talk. Of course, the assisted suicide problem can be solved by signing an "I consent" affidavit or a video recording; it's a decision people only make once and usually not in the heat of the moment. It's pretty unfeasible to add that kind of paper-trail verificationism to sex.

The only solution I can currently think of isn't a great one, indeed it's one of the "problems" with American rape law that Ms. Lithwick cites. Bring in some of the the sexual histories of the defendant and the accuser (note that this only need apply where the issue being tried is whether "consent" occurred, not when the defendant denies intercourse altogether, in which case other circumstantial evidence is available). If it's a "he said/she said" thing, then I simply can't think of any fair way to figure out whether "he" or "she" is telling the truth other than to look at the kinds of things they've said in the past. If she has a long history of dubious rape accusations, or he has a long trail of women to testify against him, those things are going to have to count. (I think I would render as inadmissable, though, evidence that either one of them had a history of consensual intercourse; that's more likely to confuse the jury than to help it).

No, it's not a pretty solution, but if the trial comes down to a credibility contest (which, absent a camera or documentation, it must) then it's probably marginally better for a jury to make an informed guess than an uninformed one. But I'm not happy with this answer, so I'll join Sara in asking, any suggestions?

MAILBAG UPDATE:

Reader Felix Hortensio poses this "hallucination":

girl agrees to sex. halfway through, boy gives up for some reason-- let's say he discovers that girl has hairy underarms. girl maintains that what she was consenting to was an orgasm, dammit-- she most certainly did not consent to *this*! consent invalid; situation = rape?

The Volokh folks have claimed another-- GMU Law Professor David Bernstein. The astute reader will have seen this coming, though, since Professor Bernstein's name has been in the "We:" sidebar all weekend.

It's time for the blogosphere to turn its eye inward. In the start of what we hope will be a long-running feature, we would like to present an interview with blogging great, Dan Drezner. We sent Professor Drezner 20 questions on blogging, political science, and Buffy the Vampire Slayer, and he responded thusly. Enjoy.

1: Why did you originally start a blog?

I read blogs way back when they were called “me-zines.” Post – 9/11, I noticed that the blogosphere was focusing much more on foreign policy and international relations, but that none of the big bloggers had any real background in international relations. So, I thought there was a niche I could fill.

2: How much time do you spend blogging, and where do you find the time to blog?

The time varies – sometimes it takes me 10 minutes to write a post, other times a few hours. There have been periods – the Trent Lott affair and Operation Iraqi Freedom – when I probably devoted half the day to blogging.

I surfed the web for news/commentary before I started blogging, so I don’t think it’s sucking up too much more time.

3: You now teach at the University of Chicago, which is reported to be one of the nerdiest colleges in the U.S. Is this reputation justified? And how does the U of C compare to, say, Stanford?

After I visited the U of C for a job interview, my wife asked me what I thought of the place. I answered, “geek heaven.” I stand by my original description.

As for the differences between Stanford and Chicago, well, let’s just say that no student at Chicago has yet:

a) Cried after receiving a B+ for the course
b) Flaked out on a meeting with me because, “it was raining.”