Many thanks to Will and the other CSers who have been kind enough to invite me onto their virtual stage this week. My home at Vice Squad owes its tenuous existence to the example of CS and to the advice and encouragement of Will Baude, in particular. You CSers have a lot to answer for!

And I should thank my provocative predecessor as guest CS blogger, Sara Butler, for providing a natural jumping-in point via her posts (the most recent here) concerning pornography...

One element that is almost strangely missing in the current pornography discussion is the policy dimension. Last week "all the people" of the United States were called upon by our President to celebrate Protection From Pornography week (or was it Protection For Pornography week? -- I get confused so easily --) "with appropriate programs and activities." (I trust that you all lived up to our President's exhortation…or do I need to have a word with the Attorney General?) But nary a peep about new legislation, no attempt to go after Playboy at 50 or to signal our rectitude by prosecuting Larry Flynt again. For that matter, there were not even any calls (at least that I heard) for more private controls, more boycotts of sexually explicit materials by hotel chains or Internet Service Providers.

The US has lived through an enormous increase in the availability of pornography in the last 50 years, and has managed, on the whole, to do so rather smoothly (though this general pattern is of little solace to those unlucky few who have managed to catch the eye of the prosecutors.) (A similar evolution has taken place in the case of gambling, I would contend.) The Republic has survived, and for all the hand-wringing, has suffered little in the way of demonstrable harm. At the same time, for some individuals and families, the enormous easing of access to pornography, particularly via the Internet, has been devastating. (This is a common occurrence: when a new "drug" is introduced into a society that has not developed control mechanisms, the consequences can be disastrous -– distilled alcohol is a repeated case in point.)

Much of the old system of pornography control was social, the fear of running into your boss at the adult video store or of simply having to deal with a sales clerk. The Internet eliminates those controls, and under the new regime of private, more-or-less anonymous access, some pornography consumers have been found to be wanting in self-control. (For information on internet pornography addiction, from a bit of a religious angle, click here.) There might be private and public policies that can help potential or actual Internet porn addicts, without imposing costs upon those who are comfortable with their level of porn consumption (or production). A policy that is not infrequent in the case of gambling is a voluntary personal ban, wherein people can precommit to not being given access to virtual or non-virtual casinos; such voluntary bans might help in the case of Internet pornography, too. You could even imagine screen access to such a commitment popping up after every half-hour logged into a porn site -– OK, that might impose some small costs on "rational" porn consumers. Such measures might be adopted voluntarily, though I would not oppose on principle (though perhaps I would on grounds of expediency) legislation that would require porn sites to provide some such bolsters to self-control. Of course, the porn sites themselves and the government are not the only "paters" capable of providing paternalistic policies. Consumers themselves might try other types of precommitment, by eschewing Internet access or by installing timers that limit Internet surfing hours.

Much more can be said, but this initial post is already too long! I’ll close by noting that the lack of interest in policing adult pornography might prove short-lived. Furthermore, the legal tools to suppress smut are already in place -– once sexually explicit material is construed to be obscene, it loses the standard First Amendment protections. Given the historical record of about-faces in vice policies, our current porntopia might not last all that long. Might we return to the situation of a few decades ago, when a novel like Lady Chatterley's Lover, completed in 1928, was not legally circulated in the US for more than thirty years?

Even casual readers of this blog may be aware of Will's crazed anti-comments crusade. But what you may not know is that there's a dirty little secret behind Crescat Sententia's lack of comments--they could be enabled on a post-by-post basis. Yes, that's right, it would require a mere mouse-click to allow those Crescat posters who liked comments to have them, while nevertheless keeping Will's own posts pure.

Ah, but that would offend Will's aesthetic sensibilities. After all, his holy war--like all holy wars--is premised on the belief that he knows best, not merely for himself, but for everyone. And as a result, even those Crescat contributors who might like to have comments enabled on their posts--not that I'm saying there are any, and if they were, they'd probably be keeping silent for fear of retribution--find themselves out of luck. Yes, that's right--the infamously libertarian Will refuses to permit any deviation from his iron-fisted rule. No decentralized, let-private-agents-decide fluff for him, no sir!

If you readers are bothered by this--either by the lack of comments or the heavy-handedness of its implementation--then please do let our fearless leader know. Drop him a line at wbaude@crescatsententia.org and demand that he unshackle the chains and allow just a little bit of freedom in his corner of cyberspace.

Another week brings with it another guest-blogger. This week, we're honored to offer our stage to Jim Leitzel, a Senior Lecturer at the beloved University of Chicago, and also the blogger at Vice Squad, the premier stop for vice news and thoughts.

Expect his always-insightful posts throughout the week.

I've devoted about six sheets of paper and too much time to trying to solve this Crooked Timber puzzle:

You are in hell and facing an eternity of torment, but the devil offers you a way out, which you can take once and only once at any time from now on. Today, if you ask him to, the devil will toss a fair coin once and if it comes up heads you are free (but if tails then you face eternal torment with no possibility of reprieve). You don’t have to play today, though, because tomorrow the devil will make the deal slightly more favourable to you (and you know this): he’ll toss the coin twice but just one head will free you. The day after, the offer will improve further: 3 tosses with just one head needed. And so on (4 tosses, 5 tosses, ….1000 tosses …) for the rest of time if needed. So, given that the devil will give you better odds on every day after this one, but that you want to escape from hell some time, when should accept his offer?

Chris Geidner at En Banc has a funny post about lawyers before the Supreme Court who have trouble keeping names straight. And as he notes, it happens even to the best of them. In March, I recounted this exchange with Solicitor General Ted Olson during oral argument for US v. American Library Association:

Olson: Justice Scalia-- I mean, Justice Souter--
Souter: You do me a great honor but I--
(laughter)
Souter: I am Souter.
Olson: I think I was expecting the next question.
(laughter)
Scalia: I wasn't even leaning forward.

In response to Adam White's "good but unconstitutional law" challenge, certified liberal Matthew Yglesias steps up to the plate, with some good replies.

Many readers will be familiar with an old Philosophy 101 identity conundrum, wherein Oedipus wants to marry Jocasta, but Oedipus does not want to marry his mother. Since Jocasta is his mother, we can conclude that just because Jocasta is the same person as Oedipus's mother, you can't just substitute them for one another willy nilly in any true proposition to get another true proposition. (In this case, I guess, because the word "want" entails certain assumptions about knowledge?).

Anyway, without necessarily meaning to, Sky TV has updated this conundrum for the reality T.V. millenium. Six reality T.V. contestants willingly kiss and fondle "Miriam." These six contestants are not willing to fondle a pre-operative transsexual. Boy are they mad.

PinkDreamPoppies has the details here.

UPDATE: An Ampersand commenter raises an interesting issue. The reality TV contestants are suing for sexual assault on the grounds that they didn't consent to fondle/be fondled by a person they perceive to be a man. Suppose they lose (though this isn't necessary).

What sort of rules of consent, knowledge, and identity govern the following case?:

Oedipus wishes to have sex with Jocasta.

Oedipus does not wish to have sex with an HIV+ partner.

Jocasta is HIV+.

Oedipus wishes to have sex with Jocasta.

Oedipus does not wish to have sex with his mother.

Jocasta is his mother.

Oedipus (20) wishes to have sex with Jocasta.

Oedipus does not wish to have sex with a girl under the age of 16.

Jocasta is 13.

At reader request, I've just changed the RSS Template so that the feed includes full posts instead of extracts. Apparently this will make those of y'all who use news aggregators happy. (Thanks to Douglas Calvert for showing me how to do this).

UPDATE:

There. It should really have worked this time.

Vice Squad's Jim Leitzel has an interesting report on child sex scholar Judith Levine's talk in Chicago (and also references some previous posts of mine on the subject). In that vein, I pass along this story from CNN:

LOS ANGELES, California (AP) -- Three high school students were expelled for making a sexually explicit video that was distributed around their private school.

The video was made last spring by a sophomore girl and two junior boys, who were not identified by officials with Milken Community High School. Two of the three students involved thought the video was recorded only for a small group of friends, said school head Rennie Wrubel.

"They thought they were just doing it for fun," Wrubel said. "And then it showed up in school."

The video was discovered by parents and the school when a boy who watched it told his parents last month. Wrubel said all known copies have since been destroyed.

The school in the Santa Monica Mountains in northwestern Los Angeles, affiliated with the Stephen S. Wise Temple, planned to invite counselors and experts to campus to talk with students about sex and relationships.

Previously, I blogged several reader responses to laws that are both desirable and unconstitutional.

Now Adam White and Christine Niles say those answers don't really count, since "none of them identified realistic, ongoing policy debates," and "none of the replies reflect any 'deeply held' political values, the sort that pose gut-wrenching struggles between the soul and the mind, as the abortion issue poses to many federalists."

This seems a little unfair. Some of the suggestions (The line-item veto, The Religious Freedom Restoration Act) aren't policy debates precisely because the Supreme Court has already held them unconstitutional. [And unlike Roe foes, supporters of the Line Item Veto hold out little hope of appointing court that will change its mind.]

I mean, some of the policies that my liberal readers have suggested have been so clearly unconstitutional that they're simply not part of the political debate any more. It seems a little unfair to say that they therefore don't count because they're not on the table. Maybe the fault lies with Republicans for continuing to champion things (like a federal abortion ban or gay marriage restrictions) that they should just give up on.

[Anyway, if it helps, I tentatively think that the Do-Not-Call list for telemarketers is a good idea, but probably unconstitutional. I don't know if Mr. White counts me as a liberal, though. I also had a discussion earlier this year with a liberal friend who thinks that the IOLTA funds accounts at issue in Brown v. Legal Foundation of Washington were both a good idea (they siphoned off interest from client accounts to pay for lawyers for the needy) and an unconstitutional taking under the 5th Amendment.]

Look, there are lots of good ways to indict the "Living Constitution" crowd. I've done so myself a number of times. But when people rise to a challenge, you can't just say "that doesn't count," and change the rules of the challenge until you get the result you wanted in the first place. That's something they might do.

UPDATE:

Yglesias takes the case.

Well, The New York Times writer and his wife seem to have had a better trip to Chicago than New York Timers usually do. Then again, if I had $500 a day to entertain myself, I could probably have a pretty good time too.

The Frontera Grill and Lou Mitchell's are perfectly reasonably ways to pass one's early-day meals, though Lou Mitchell's (an old-fashioned breakfast diner) is best-suited to decadent Sunday Mornings after some particularly harrowing or hair-raising weekend ordeal, and Frontera Grill's dinners are also fabulous. The only trouble is that they don't take reservations, so the wait is usually about two to three hours. Bring a very charming dinner companion.

They also saw some good theater, including "The Goat, or Who is Sylvia?" I have received intelligence that Professor Leitzel's also seen this production, so I'm waiting for a review from him.

They seem to have had some trouble getting a late dinner. On the one hand, I sympathize with Chicago's tendency to close down early, I really do. On the other hand, my supermarket in Cambridge closes at 5 on Sundays.

Incidentally, for future reference, Brasserie Jo is open until 10, and the food doesn't get worse late in the evening.

As my guest-blogging gig at Crescat Sententia draws to a close, I'd like to thank all you lovely readers and, especially, my lovely hosts for having me. It's been great fun, and I do hope some of you will come visit me at my permanent blog-home, Diotima.

Will for some odd reason is under the misconception that human institutions do not have purposes beyond what you or I may decide we want to use them for. But most instruments are designed to perform a specific task, and I'm really not sure why conventions like dating and marriage are any different.

We make forks to eat food with. I could, like Ariel, use a fork to brush my hair if I wanted to, but that's not what forks are for. They are not designed to get nasty tangles out of my hair, and I'll probably end up in a lot more pain and with a lot less hair than if I used a tool that is made for that purpose, namely a hair brush. Similarly, you can use marriage for other things, but as an institution, it's designed to be the foundation of the family, and using marriage for other reasons can also cause problems. For example, if I marry only for love, when I fall out of love with my husband, I have to go through all the headache and heartache of a divorce, or maybe, if I have a problem with divorce (which, unsurprisingly, I do), I feel guilty, conflicted and generally miserable, struggling not to break my vows even though the reason my marriage existed in the first place is no longer motivating.

The added wrinkle is that misusing institutions like marriage and courtship don't just affect the immediate people involved. If I decide to brush my hair with a fork, the only one who's going to get her hair pulled out is me. But with human instutitions, which we create and maintain, misusing them also changes them, corrupts them. Which is why we now have so many people dating and marrying for the wrong reasons. Now, good Burkean that I strive to be, I'm all about organic change. But when institutions change, the purpose should stay the same while the shape of the insitution shifts to better support that purpose in a new set of circumstances. So, for example, courtship practices have varied widely over time. It used to be that a young man would have to wait for an invitation from the young lady or her family before he could call on her. Courtship switched to being initiated by men when it moved outside of the home and required money, which men had and women didn't. But the purpose remained the same: finding someone to marry. The kind of change we've seen more recently has been different; it's a corruption from the inside out as people use the same old institutions to pursue their own incorrect purposes.