Readers know I've been very curious about how the Simon/Garfunkel reunion tour will go. I've been cautiously optimistic, and Matt Reece's brief review seems to reinforce this optimism, and the caution.

. . . to my chain-smoking ex-classmate Mr. Coates, who soundly beat me on the LSAT.

It always amuses me to see how others view the University of Chicago. [Over here in Cambridge the usual response is "I've heard of the city of Chicago", except among econ-types where the response is "Oh, Milton Friedman!" (Mention Gary Becker, James Heckman, Steven Levitt, or Richard Posner and you draw blank looks)]. Anyway, Brian Leiter sums it up thusly:

Chicago is perceived as "hard" and "nerdy," so all the horny valedictorian boys apply elsewhere

Via Vice Squad, I see that it will soon (generally) be legal to smoke marijuana in the streets of Cambridge. If the behaviour of my friends at and after dinner tonight is any indication, they're mostly too busy getting wasted to get stoned, but I'll keep an eye out to see if any avail themselves of the decriminalization in January.

Howard Bashman, DMB fan?

Much as I hate to so roundly criticize my guest, Sara Butler's at it again. She writes:

The point of getting married is to start a family; marriage is what transforms a "couple" into a "family." The idea that marriage is just about two people is what has lead to its erosion. (emphasis mine)

No, this won't be the usual list of random blog-entries. Will's currently reading the rather addictive fantasy novels of Terry Pratchett. From Sourcery:

THERE IS NO HOPE FOR THE FUTURE, said Death.
"What does it contain, then?"
ME.
"Besides you I mean!"
Death gave him a puzzled look. I'M SORRY?
The storm reached its howling peak overhead. A seagull went past backwards.
"I meant," said Ipslore, bitterly, "what is there in this world that makes living worth while?"
Death thought about it.
CATS, he said eventually, CATS ARE NICE.

(Via En Banc): Brian Leiter criticizes Lawrence Solum's Top Ten Jurisprudence Books List, and supplies his own. Cleverly, Leiter manages to agree with Solum on three choices (Hart, Dworkin, and Finnis), quarrely with him on three, (Barnett, Kennedy, Shiner), briefly mention one (Fuller), and claim that two of them simply aren't books on jurisprudence at all (Ackerman, Rawls). The book Leiter refuses to mention at all, but loudly leaves off his own list? Richard Posner's Economic Analysis of Law. It doesn't even get a refutation.

(For more forthright criticism of Law and Econ, see this En Banc post).

UPDATE:

Professor Leiter writes in:

I didn't mention Posner, because the same point applies to him as to Rawls and
Ackerman: it's not jurisprudence, at least not in any recognizable sense.

1. a. Knowledge of or skill in law.

b. The science which treats of human laws (written or unwritten) in general; the philosophy of law.

Jurisprudence stands to law as philosophy of science stands to science. In both cases, we're interested in certain abstract theoretical questions about what there is (and the nature of what there is) and about how we know (and whether we know) what there is. In the case of law, this means the jurisprudential questions of significance revolve around (a) what does it mean to say that "law" exists in some society, i.e., what has to be the case for there to be law, how do we demarcate (should we demarcate?) "law" from the other kinds of norms characteristic of human societies (moral norms, aesthetic norms, norms of etiquette), and what kind of normative system is law (i.e., what kind of reasons for action do legal systems supply as distinct from other kinds of normative systems--and how good are those reasons?); and (b) how do we know what the law is (given its nature, per (a)), e.g., what structures of reasoning (if any) justify claims about what the law is, to what extent do existing adjudicative mechanisms approximate appropriate structures of reasoning, and so on.

Ackerman, Posner, and Rawls do not, by and large, offer answers to these questions, though Ackerman and Posner, in particular, seem to presuppose certain answers to them (and Posner, in other writings, does have some explicit answers to some of these questions, but not in his Economic Analysis of Law). Kennedy offers some explicit answers to some of these questions, but they are poorly formulated and philosophically insubstantial. Barnett fares somewhat better than Kennedy on the core jurisprudential questions, but not as well as Hart, Raz, et al.

Much as I do enjoy reading Dahlia Lithwick's Jurisprudence columns for Slate, The Curmudgeonly Clerk defeats her on the merits. Of course, The Clerk defeats most people on the merits, so I generally try hard to avoid arguing with him.

Pejman Yousfzadeh stages a perhaps unwitting raid on Brad DeLong, and DeLong finds his comments seized by trolls, which take a great deal of effort to police.

Indeed, I've always been impressed by Pejman's ability to keep his commenters relatively under control. My understanding is that he accomplishes this only by weilding a pretty heavy dictatorial hand.

Long-time (or even short-time) readers will already know about my anti-comments crusade. So I have little pity for DeLong. Indeed, maybe part of the reason for my bias is that I've always been pretty closely connected to the QuizBowl blog-ring, which has a chronic troll problem (though it comes and goes).

Dear readers, I appreciate you all very much, and nearly every email I've received has been interesing, informative, valuable, or all three. Similarly, I appreciate every blogger who links to us with a comment or criticism. These are the interchanges that make blogging great. It's just my casual empirical judgment that the added "feedback" one gets from adding an easy-to-use comments system and letting y'all go to town rarely results in anything constructive for anybody.

I try very hard to keep up on my correspondence, and to blog a lot of it, to make up for our lack of comments, and I've taken some polls among my co-bloggers. Despite the fact that Movable Type makes comments relatively easy, we don't seem likely to change our mind.

So if Professor DeLong is willing to turn his blog over to the trolls, more power to him. As to you, dear readers, your emails and links are always welcome.

(This post with thanks to Jacob Levy)

Caitlin Flanagan, a contributing editor of the Atlantic Monthly, is one of the most intelligent observers of modern womanhood that I've encoutered recently. She had an incredibly interesting tribute to the '50s housewife back in the September issue, and in November, she takes a look at weddings, jilted women, and how we think of marriage. Some of her observations help to explain what I think is wrong with the way Amanda sees marriage.

Amanda wrote:

I could understand, and I might agree with her, if she had instead written that the point of dating was to find someone you loved and who loved you. But why must this result in marriage (and what, Ms. Butler, is the point of dating for those people who can't legally marry)? That question aside, I'd say the most powerful argument against marriage is the desire to have no legal, contractual bonds connecting you to your partner: you will stay together because, each and every day, this is the life and future you want, a bond that isn't officially recognized by society or vowed before God or enforcable in court (assuming none will claim you were married at common law).

The objection, I suspect, is that marriage is a declaration before society that two people are a couple. I don't find this very convincing. Etiquette doesn't demand rings, so I'm not sure part of society does. It also remains to be explained to me why I care for society's recognition of my bond with my partner, especially since this word 'society' tends to be used in a way that suggests I don't really have any personal acquaintance with most of the people who comprise it.

Basically, I think that Amanda fundamentally misunderstands the purpose of marriage, which is not "society's recognition of my bond with my partner." Beyond my friendly feelings and general good will for Amanda, neither I nor society particularly cares if she bonds with someone else or not. Neither do we care if they want to declare themselves a "couple," which is what happens when you start an exclusive relationship with someone, not what happens when you get married. The point of getting married is to start a family; marriage is what transforms a "couple" into a "family." The idea that marriage is just about two people is what has lead to its erosion. In fact, if all Amanda is looking for is someone she loves and who loves her, I would totally agree with her that she should not get married. I think our high divorce rate and the current fragility of marriage can largely be blamed on a culture that thinks that marriage is all about proclaiming how much one individual loves another individual, which absolutely does not encompass all that marriage is. It is about two individuals coming together and becoming a family - not two individuals who are merely conntected by "legal, contractual bonds." Ms. Flanagan writes:

Consider the Almost Brides, an astonishing number of whom allude in their tales of woe to children: children they have borne to their fiancés, or to other men, or children that their fiancés have sired with previous wives or girlfriends. That these broken engagements (many of which ended in rage fests followed by what psychotherapists usually describe as "sexual acting out" on the part of the Almost Brides) may also have constituted periods of significant loss and grieving for these children—who suddenly had to bid good-bye to a person they had expected would be a parent—goes entirely and shamefully unmentioned in There Goes the Bride. Such is the lot of children in our culture: absent stigmas on divorce or single parenting or illegitimacy, with religion often a governing factor in people's lives only to the extent that it is a boon rather than a constricting force, a child's fate in life is entirely dependent on the sexual and romantic whims of his parents. And come wedding time, the child is considered merely a cast member, a cunning little ring bearer or flower girl or—worst-case scenario—sulking adolescent in a shiny new suit of clothes, rather than someone whose life is about to be profoundly (if perhaps temporarily) affected by the events at hand.

We get married to start families, and families exist for the sake of having children. The institution of marriage doesn't exist for the sake of personal fulfillment, but to ensure that children grow up in stable home with both of their parents. But on the whole, we don't see marriage that way any more, as Ms. Flanagan writes:

Whereas a wedding once provided young people with a moment of transformation so powerful that even a modestly funded event was a momentous one, nowadays —with marriage an iffy bet and with most betrothed couples having already helped themselves to all the liberties of adulthood—the only way to underline the moment is to put on an elaborate and costly show.

Given the way marriage has eroded in the 20th century, I'm not surprised that Amanda finds it unappealing. And I might almost agree that marriage compromises romantic ideals. Marriage forges a bond of familial duty between the two married persons and the children they have; while lovers' duty is to their own feelings and no one else. In some sense, the two are fundamentally incompatible. Happily for us modern persons who can't bear the thought of marrying without love, Jane Austen managed to reconcile the two rather nicely, although I don't think her solution is viable for everyone, founded as it is, on virtue.

Well now, some interesting news has surfaced today about Bush's so-called "forest management." As California continued to burn this week, the Senate took up the issue of forest thinning as a means for preventing forest fires. The bill passed the Senate by a 80-14 vote. Included in the Senate bill is the appropriation of "$760 million in additional federal money" for the project.

Despite the dominant rhetoric of public safety concerns in this deregulation of public lands, it appears painfully obvious that the public interest has really been trumped by private interests. Indeed, the Times article notes:

The Senate beat back a string of amendments, including those that would have required more financing for firefighters, greater judicial review of logging decisions...

Here comes the kicker. The (in-)action of George Bush probably made California's fortunes worse. Apparently, back in April, Gov. Gray Davis had requested federal funds to clear out thousands of acres of forest that had been ravaged by a beetle infestation. The infestation had left many trees in the area dead, and thus more susceptible to fire. The Bush Administration turned down that request, and now those same forest lands are burning.

So what are we left with? A $2 billion crunch on California's already beleaguered economy, 730,000 charred acres, 2600 burned homes, 20 people dead, and 1 new forest management bill that gives no financing to firefighters and further removes the control of public lands from public hands. Oh yeah, and the taxpayers will foot the bill for $760 million. All this from a President who had the opportunity to lessen the threat of catastrophic forest fire in California, but chose not to do so.

The way these events have played out bring Bush's motives for the forest management bill (public safety, remember?) into serious doubt. As the Times article notes, "...opponents, including environmental groups and some leading Democrats, described the bill as a giveaway to timber companies that would allow unfettered logging while suppressing citizens' complaints." They may be onto something.

Quoth my Social/Political Sciencce supervisor, Dr. Julie Smith:

You've got this tendency to put anything really interesting you have to say safely inside parentheses.

We are, of course, utterly grateful for all links to our humble blog. Sometimes, though, we wish we spoke Portuguese so that we knew what people were saying about us, particularly when we know just enough to to tell that Nabokov's Ada figures into the post as well.

UPDATE: The posts author writes in with a translation:

This time I even saved money (a reference to the 49th Book Fair of Porto Alegre). I doubt I will find again something like Nabokov's Ada in those discount bins, but let's wait and see.

Oh, and according to this silly test, my political inclination is that of a social libertarian and an economial centrist, with a neglectable tilt to the left in economy. [Link stolen from Crescat Sententia.]

From this New York times article on increasing obesity in Europe:

Obese people suffer a wide range of illnesses and disabilities, including diabetes and cardiovascular disease. But unlike smoking, eating is not outright harmful to health, so it is more difficult to control by legislation.

In fact, one might even go so far as to say that eating in moderation is beneficial to one's health.

I'll be up in north Texas for the weekend, where I may or may not find some answers to the ongoing debate of whether marriage is the be-all, end-all of dating. The handsome groom I'm off to see is my cousin. That is, I'll inquire if it's appropriate to ask such questions during the reception following a ceremony at which the bride's father, a Southern Baptist preacher, has officiated. Somehow I'm suspecting that the answer to that subquestion will likely be a resounding "not appropriate", and such theoretical questions are best left for the winery to which my immediate family may retreat (should that happen, I'll report on the quality of Dallas-area wines).

Everybody is all atwitter about Justice Janice Rogers Brown's supposed praise of Lochner. Let's roll the tapes, shall we?

[All of this starts at the beginning of the after-lunch session]

Here is Senator Schumer speaking in his opening statement:

Schumer: In Justice Brown's case she's remarkably straightforward in her praise of the Lochner case, and her criticism of Judge Holmes's famous dissent there, calling Judge Holmes simply wrong. Even Judge Bork praised the lochner dissent. . . If you asked most lawyers to name the worst of Supreme Court Decisions in the 20th century, Lochner would be at the top of the list. Justice Brown thinks it was correctly decided. Even Justice Scalia, who so often advocates cutting back on Congress's power to protect basic rights is content to let the states do so themselves. . .
Let's go to your own record. In Santa Monica Beach vs. Superior Court, you called the "demise of the Lochner era, the revolution of 1937."

I do not advocate a return to the era of Lochner v. New York, when courts routinely struck down economic regulations under the due process clause, thereby inhibiting the ability of government to restore confidence to the marketplace and to prevent exploitation of those who have little bargaining power. Appropriate regulation can serve to foster, not tax, economic growth and social well-being by creating and maintaining an environment conducive to beneficial commerce. On the other hand, I do advocate judicial reasoning that is clear and credible. No fair assessment of the words, " 'substantially advance' the 'legitimate state interest' sought to be achieved" (Nollan, supra), can equate them with a rule that limits compensable "takings" of private property to government action that is "arbitrary." Moreover, we can apply the high court's "substantially advance" standard faithfully, while still maintaining the appropriate deference to legitimate government efforts to regulate the use of private property. . .
The majority's call to deference thus rests on an unspoken and critical assumption: that property merits only an inferior level of protection. That conclusion, a historical artifact of the demise of the Lochner era, N2 has no defensible constitutional provenance.

N2: Lochner ( Lochner v. New York (1905)) is the name that has come to symbolize judicial usurpation of power. But the problem with Lochner was not that it sought to make judicial review meaningful or that it deemed economic interests worthy of protection. The Lochner court was justly criticized for using the due process clause "as though it provided a blank check to alter the meaning of the Constitution as written." ( Harper v. Virginia Bd. of Elections (1966))The "revolution of 1937" ended the era of economic substantive due process but it did not dampen the court's penchant for rewriting the Constitution. Although the court left the protection of property interests largely to the mercy of legislatures, it continued to apply substantive due process to the protection of civil liberties. "As several of the Justices have noted in dissent, there is only a verbal difference between the 'fundamental rights' branch of the compelling governmental interest test and the now discredited substantive due process doctrine of such cases as Lochner. . . . Both of them leave the Court entirely at large, with full freedom to enact its own natural law conceptions. The only difference is in the type of interests that are protected . . . ." (Lusky, By What Right? (1975))

Schumer: Do you stand by your views in Santa Monica Beach v. Superior Court about the demise of the Lochner era and the revolution of 1937?
Brown: (long pause) (sigh) Well, the cases . . . say what they say, and I hope that I always try to do an analysis that is very accessible, that anybody who reads it can understand what I've sad.
Schumer: So you do stand by them.
Brown: (shaking her head) I have tried to write--
Schumer: (interrupting) You can answer that yes or no.
Brown: Well, the cases are there. I guess that's--
Schumer: (interrupting) So the answer is yes?
Brown: Well, the concern I have, Senator, is that you started off making a lot of statements...
Schumer: (interrupting) But--
Hatch: (interrupting) Let her answer the question
Brown: ...about what that was and what my views were and what that meant. So all I'm saying is what's in the cases is in the cases, and it should be clear.
Schumer: I'm gonna take that as, you stand by those views, 'cause you haven't refuted them here, and you said what's in there is in there. Thank you Mr. Chairman.
Hatch: Well let me just say I don't take it that way I take it that, Senator you've interpreted the way you want to, but that's not the way I meant--
Schumer: (interrupting) Well, Mr. Chairman it's a simple yes or no question...
Hatch: (interrupting) No it isn't
Schumer: ...do you stand by them or do you not stand by them...
Hatch: (interrupting) No it isn't
Schumer: ...and we can't get a yes or no.
Hatch: No it isn't, because she has consistently explained throughout this whole hearing that she has . . . she put this language into those opinions, and that language deserves to be interpretedly differently from the way you've interpreted it. It isn't just a simple yes and no-- yes or no. No. And I think that's a fair statement, isn't it?
Brown: Yes.
Hatch: In other words, you don't have to take Senator Schumer or my interpretation of what your cases say, but to try and paint you like you're back in the Lochner era, without understanding what Lochner is all about I think is just wrong. You do understand it.
Brown: Mr. Chairman, if I may I do need to follow up on something, because the prologue to your (gesturing to Schumer) question was quite long, and you made a statement that "you're obviously out of the mainstream, you clearly take positions that not even very conservative judges take." And you base that on this idea that I want to return to Lochner, that I said Lochner was rightly decided. I have never said that. In fact, in my cases I have actually said that to the extent that the Lochner Court was using the using Due Process Clause as a blanck check to simply insert their political views into the Constitution, that they were justly criticized. And I've also said that that portion of the Holmes dissent which is simply reflecting a deference to the legislature is one that I generally agree with.
Schumer: Do you agree with the holding of Lochner?
Brown: I have said that I think that it's appropriately criticized, and it's been discredited. I mean, Lochner is this curious case that has actually ended up creating a new word in the English language (laughing). And I think I've even said that it's the most pejorative thing that you can say, among attorneys.
Schumer: You don't agree with the holding of Lochner?
Brown: I think that I've been clear. I said that it is appropriately criticized to the extent that they were inserting their views into this case. Or into the Constitution, I guess. That's the issue.
Schumer: Thank you, Mr. Chairman.

I had a difference of opinion with this idea that the Framers of the Constitution had no economic notion. I think it's very clear, when you read the history, that there was a concern about property, that the American Revolution was a revolution that was really fought over property. That one of the reasons that the Constitution came into being instead of just modifying the articles of confederation, was that there was concern about what legislative majorities were doing with property. So both in the Constitution and in the Bill of Rights, that concern finds expression in specific language.