I thought that I might use (abuse?) my CS guest privileges this week to mention a vice policy book or two that I hold in high regard. With respect to drugs, perhaps my favorite book is the unfortunately titled Legalize This!: The Case For Decriminalizing Drugs, by Douglas Husak. In his book, Husak, a philosopher and legal scholar, covers all of the usual arguments for and against criminalizing drugs. But he is less interested in the question of whether our current drug policy works than he is in the question, is criminalizing drug possession consistent with justice? Husak answers this question firmly in the negative, and I agree with him: it is unjust (and an abuse of the criminal justice system) to put someone in jail because he or she happens to be walking around with a little bit of some substance, which he hopes to consume later for his personal enjoyment, in his pocket. As justice is not a policy goal but rather a constraint on our actions (p. 13), this conclusion essentially ends the argument (though Husak is fairly exhaustive in his examination of all the usual dimensions upon which drug policy is debated.) The resort to cost-benefit-style reasoning in the drug debate is itself telling: we don't need to look at the data to know that we should punish murder (p. 23). If you can read the Husak book and somehow still think that we should put folks in jail who happen to be walking around with a little bit of a currently-illicit drug in their pockets, you would do me a favor by explaining how you can hold this opinion. (By the way --and do not rely upon this information, I am not a lawyer! -- I believe that there are some countries, perfectly fine countries such as Italy and Spain, that do not put people in jail for possession of small amounts of currently-illegal drugs.)

The great anti-drug-war blog Drug WarRant includes a list of recommended books here.

As I said earlier, I flew to Dallas this past weekend. I packed light: a backpack of readings which I knew I wouldn't get around to doing (I didn't) and a small overnight bag. No need to check luggage.

As we're driving from the airport to the wedding and I'm rooting around in my purse for a pen, I discover my pocketknife. Neither of these objects is large: the purse is perhaps 9"x4"x3", mostly empty, and the knife an inch long. The airport scanners at Midway didn't notice it. This turned out to be useful later on, and I checked that bag for the return trip rather than test TSA again. [wait, just why do you need a knife at a wedding? To serve to your aunt and your other tablemates at the reception the pomegranate from the centerpiece, of course. Are you sure it's ok to eat the decoration? I haven't read Miss Manners on this, but the groom said he was glad to see us eating it.]

Harold Hongju Koh has an opinion essay, Rights to Remember, in this week's Economist. For credentials, Mr. Koh is professor of international law at Yale and was assistant secretary of state for human rights under President Clinton. Read it. I mostly agree with him on the big picture, but quibble on some of his points.

The Bush doctrine asked: “How can we use our superpower resources to protect our vulnerability?” The administration's answer has been “homeland security”. To preserve American power and prevent future attack, the government has asserted a novel right under international law to disarm through “pre-emptive self-defence” any country that poses a threat. At home it has instituted sweeping strategies of immigration control, security detention, governmental secrecy and information awareness. . . . Witness five faces of a human-rights policy fixated on freedom from fear. First, closed government and invasions of privacy. Second, scapegoating immigrants and refugees. Third, creating extra-legal zones, most prominently at the naval base at Guantánamo Bay in Cuba. Fourth, creating extra-legal persons, particularly the detainees of American citizenship labelled “enemy combatants”. Fifth, a reduced American human-rights presence through the rest of the globe. [emphasis mine.]

So to those who would blame American culture for America's unilateralism, let me remind you that not every American is equally well-placed to promote American unilateralism. In recent years, such individuals as Mr Bush, Donald Rumsfeld, John Bolton, Jesse Helms and Justice Antonin Scalia have held particularly strategic positions that enabled them to promote this sea-change in human-rights policy.

Oh? Justice Scalia? To what action does Professor Koh refer? I can only guess, and without strong certainty, that he may have in mind Scalia's dissent in Lawrence v. Texas. This is the only conclusion I can draw from the following quotes lines of Justice Kennedy's majority opinion: “the right petitioners seek in this case has been accepted as an integral part of human freedom in many other countries" and "[t]here has been no showing in [the United States] that governmental interest in circumscribing personal choice is somehow more legitimate or urgent."

He continues,

What this may mean is that when the September 11th cases get to the Supreme Court, American human-rights lawyers can similarly argue that the legality of our policies must be evaluated by “values we [Americans] share with a wider civilisation”. Citing Lawrence, human-rights advocates can urge the court to decide whether the rights being asserted by detainees like Mr Hamdi, Mr Padilla and those on Guantánamo “have been accepted as an integral part of human freedom in many other countries” and can argue that our government has not demonstrated “that the governmental interest in circumscribing [these freedoms] is somehow more legitimate or ugent” in the United States than in other countries that have seen fit to forgo such legal restrictions.

Whether our Supreme Court will accept these arguments remains unclear.

Unclear indeed. Kennedy's discussion of international opinion in no means binds future Courts to consider international law germane to discussions of what the United States Constitution means. "A wider civilisation" is a definition I fear most used when a good and respectable civilization may be found that is doing what those using this argumentative yardstick would like America's to be doing. How many arguments do you hear for re-writing America's libel laws to be the same as those of that bastion of civilization, England (some, I'm sure, you can find an argument for just about anything, but were you convinced?)? Or would you like civilization to include all countries in the world, even those with practices we'd like to think we'll never see because they are so offensive?

But that is my standard first-line attack against the use of international law in American constitutional interpretation. Revulsion at the situation down in Guantanamo Bay -- the U.S. leases a piece of Cuban land, and suddenly it's not subject to the Geneva Convention and the or standard American courts -- is offensive to our sense of how and what the Consitution should be, regardless of whether there are actually loopholes in the law permitting this no-man's-land legal arrangement. And could an originialist destroy the justifications offered for Guantanamo without falling, as he would be loathe to, on international law? Yasser Hamdi and Jose Padilla are American citizens: In all criminal prosecutions, the accused shall enjoy a the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed. That they are not receiving what I presume to be their 6th Amendment rights is one issue (that the Court will hopefully hear); that this situtation needs stronger or supporting advice and precedent from a source outside the Bill of Rights is a move I cannot make.

With all due respect to Will and his impressive math skills, I think he's missing some crucial aspect of this whole problem: you're in hell! I'm not entirely convinced that people are fully rational agents on the earthly realm, and they're surely not when subjected to the coercive powers of excruciating, mind/body-altering torment. I'd say that, assuming hell is all it's cracked up to be, anybody would accept the coin toss the moment it's offered. I'm not well versed in scripture, but I'm pretty sure that not even one day in hell should be bearable by any stretch. I'm just not convinced that people would act fully rationally (ex. calculating the escalating probability of their departure) given the dire circumstances.

Okay, so I think I've gotten an answer to this Crooked Timber puzzle, though it strikes me as a little odd, so I'm posting it here in case some enterprising soul wants to ruin my day by correcting me. Here's the original 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?

You'll flip the coin on Day N, where N > ( {ln[(1+d)/d]} / {ln(2)} ) - 1.

Does anybody want to check my math? Here's how it seems to me.

On day N, you're faced with the choice of flipping today versus waiting to flip tomorrow. We're looking for a requirement for N, such that the expected utility of flipping today beats the expected utility of flipping tomorrow. (Because we're just using utilities, we don't need to deal with risk aversion functions. All that information can be captured by the utility function.) Let H = the utility of a day spent in Hell, and E = the utility of a day spend free (escaped). Let d = the discount factor for each period.

On day N, your chance of losing to the devil (assuming, as we must, that he plays fair) is (1/2)^N, because you have to lose all N coin flips to lose, and you have a 1/2 chance of losing each one. (Conversely, your chance of beating the devil is [1 - (1/2)^N]. Remember also that with a discount rate of d, the net present value of getting utility H for an infinite amount of time is H/d. So on Day N, your expected utility if you take the coin flip on Day N is:

(1/2)^N * H/d + [1 - (1/2)^N] * E/d

H + (1-d){[(1/2)^(N+1)] * H/d + [1 - (1/2)^(N+1)] * E/d}

(1+d)(H-E) > 2^(N+1) (H-E)(d)

(1+d)/d < 2^(N+1)

Friend of Vice Squad (and now guest friend of CS?) Dr. Christopher Young writes from London to bring our attention to this article in the Washington Times concerning AIDS prevention programs in Moscow. Seems that some members of the Moscow City Duma are not taking well to US-sponsored AIDS "harm reduction" measures, policies that seek not to eliminate sex or drug use but rather to ensure that such activities take place in manners that limit their potential for spreading HIV. The distribution of condoms and information about safe sex are two such measures, while legalizing and regulating prostitution might be another. (Vice Squad has discussed harm reduction before, most recently here.) The legislators' concern is that such measures might increase the prevalence of prostitution, by "encouraging young women to choose prostitution as a career."

The legislators' position is more untenable here than are most anti-harm-reduction arguments. They could argue that total harms will increase as prostitution increases, if the increased prevalence more than offsets a decrease in harms per occurrence. But they don't really argue that, nor should they -- death from AIDS would swamp any other harms from prostitution, so measures that can reduce those deaths (and remember, the induced increased prevalence will be among those who learn about the dangers of AIDS and the necessity of safe sexual practices) really should decrease total prostitution-related harms. And Russia is facing a harrowing AIDS crisis. The legislators' position can ungenerously be portrayed as arguing to existing prostitutes and those who would become prostitutes in any case that "You must face the death penalty to deter others from following down your unrighteous path." [Update, thanks to re-reading Dr. Young's e-mail. Exactly how do these harm reduction materials encourage girls to go into prostitution? The message "If you practice safe sex as a prostitute, the chances of your contracting this fatal disease are diminished relative to what they would be if you practiced unsafe sex as a prostitute" doesn't exactly sound like a promising prostitution recruitment campaign.]

And it seems as if it is righteousness with which the legislators are concerned. According to the Times article, "A major task for those who hope to promote democracy in Russia, [the legislators] wrote, 'is to restore the moral values of our society.'" Restore the moral values, say to circa 1990? That was the year was when a poll showed that 60 percent of Soviet schoolgirls wanted to become hard currency prostitutes when they grew up.

I mentioned in my initial CS post that the legal framework for banning much pornography in the US remains in place. Nor does the existence of the Internet render futile all attempts to control porn.

In interpreting the First Amendment, the Supreme Court distinguishes between obscene material and indecent material. Obscene material enjoys no First Amendment protection, while indecent sexual material does.

What is considered to be obscene? A 1973 case, Miller v. California, provides the current standard. Quoting from the opinion of the Supreme Court in Miller, "The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, [citation omitted]; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

Possession of obscene material in your own home is protected, though transportation, distribution, and receipt can be controlled. Possession of child pornography, even in one’s home, is forbidden. (Disclaimer: Do not rely upon this information! I am not a lawyer, and I am frequently wrong, especially about legal matters!)

So the legal definition of obscenity in the US involves contemporary community standards. For Internet communications, what is the relevant community? Given the "private" nature of Internet viewing, is there any community at all? In an amazing case (US v. Thomas, 1996 FED App. 0032P (6th Circuit)), a couple in California who ran an Internet bulletin board was found guilty in Tennessee of purveying obscenity. (The same material might not have been considered to be obscene in California, which has different "community standards.") The board restricted access to its pornographic material by requiring an application, after which a password was provided. A US Postal Inspector in Tennessee signed up under an alias, downloaded pornographic pictures, and ordered videotapes that were sent to him by UPS. The couple was then convicted of violating various federal obscenity statutes. (It is established in federal law that the government can prosecute distributors in any venue where the putatively obscene material is sent, and then that venue's community standards are controlling.) The husband received a 37-month jail sentence, and the wife received 30 months.

It is a truth universally acknowledged, that a professor giving an English Lecture, must at some point quote Jane Austen.
Professor Michael Wood, this evening

There are few passive intellectual experiences as sublime and world-settling as slinking into one's seat to listen to a master like Michael Wood speak, in this case on "What Does Literature Know and How Does it Know it?"

The answer (or at least tonight's answer-- this was the 4th of 6th lectures) required a tour through Bishop and Rilke, Nabokov, and Calvino, Tolstoy and Empson. [You know you're hopelessly addicted to poetry when: the speaker starts his next section by saying "Lose something every day. Accept the fluster..." and you shoot up out of your chair in attentive joy.]

In any case, once a good literature scholar gets going (if he's talking about literature you care about) philosophical and logical concerns fall away-- so what if he's making senseless assertions? ("The novel has an argument, but it doesn't need to win it." "It's a masterpiece, but it's not at all clear what it is.") They're assertions that make sense.

Wood spent much of his time justifying his personification of literature ("How can literature know anything?" his critics cry). "A work of any kind, a story or sonata or table or hat," he said, "must have a life apart from its maker, and writers are endlessly talking about it."

Fair enough, but then he got onto the good stuff, translating Rilke, and discussing the rules of form that writers nonetheless flagrantly break. [One example: In Vladimir Nabokov's The Real Life of Sebastian Knight, the author never tells us his name, only his initial, V. That's all fine, until we get to this passage, where V is introduching himself to someone else:

"My name is so-and-so," I said.

Anyway, what's always made literature and certain kinds of literature study appeal to me is this zone of truth, where serious philosophical gloves are dropped in place of . . . something else. I know there are people who fight tooth-and-nail about literature. I'm even one of them, but even the arguments, however bloody, have a different, more friendly, nature.

Anyway, go out tonight and find somebody who likes the books you like, and talk about words for a while rather than sex, marriage, jurisprudence, forest fires, or schools.

the Supreme Court has denied cert in Consumers Union v. Suzuki Motor Corp, one of the Ninth Circuit's more wrongly decided cases.

For last May's post, click here. For Judge Alex Kozinski's 11-judge opinion dissenting from denial of en banc review, go here.

Responding again to Sara on the "point" of marriage & the nature of courtship, I am surprised by the certainty she expresses as to what marriage is for: that is, that it is "designed," as an institution, as the foundation of family. Who designed it? What an odd way of speaking about an institution whose manifestations are, and historically have been, so many and various! Is it likely--is it possible--that marriage is "designed" for any single thing? What about competing theories, that say what marriage is *really* for is something else, such as controlling the disposition of property, or the godly containment of sexual impulses?

Also, harboring nostalgia for some golden age of courtship, when the rules were clear and the relations between the sexes were as smooth as single-malt is a little problematic.

To say that the purpose of courtship is to find someone to marry works, sure--as long as you define courtship as seeking a marriage partner. But there have always been less visible, parallel (and often horizontal) activities that have gone right alongside (before, during, and after) the lawful-mate-hunt, and which have often been conducted according to an egregious double standard that penalizes women but not men for participating in them. You can call it a crime, you can call it hooking-up, you can call it a bedroom farce, but the pursuit of sex does happen, always has, and it seems capricious to say that whatever we mean by "dating" it isn't that. (If anything is being corrupted it's the language, because "dating" is just a stupid word.)

But beyond that, I really haven't the faintest idea when and where this supposedly uncorrupted era of courtship was, except between the covers of a Jane Austen novel (which heaven knows is where I'd like to live, or at least to spend my vacations). Sara says, "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"--well, when and where was this the case? And among what classes? Are we talking about Mozambique here? Mid-19th century Manchester factory workers? How about among the--many, many--prostitutes of Victorian London? At the court of Charles II? Colonial New England (hotbed of that quaint courtship custom, bundling)? Was this the way a French scullery maid conducted her affairs?

From the AP:

"Woman talking on cell phone killed when car hits cell-phone building"

Sad, indeed.

Via Political Theory Daily Review, we have a story about how Singaporeans are among the least trusting people in the world. Now, this is an interesting bit of data; while one might expect that an authoritarian regime might breed distrust, it's not obvious why Singapore would do worse on this score than, say, China, as it apparently did.

But all of this is a bit of an aside. What's so good about trust, anyway? Why do we have flocks of sociologists trying to figure out who's the most trusting? Perhaps this is just a case of an impressionable young grad student parroting his advisor's ideas (buy the book!), but it seems to me that the trustworthiness, not trust, is the bigger problem.

The Singapore article notes this juicy tidbit: "Piqued by the survey findings, The Sunday Times put the Singaporean in the street to a quick trust test, by asking him for a $20 loan. Only 10 in 40 obliged." My question is this: how often, when Singaporeans in the street are asked for 20$ loans, do they get repaid? This is an empirical question that I have absolutely no data on. But let's suppose two societies, A and B. In society A, people who ask strangers for loans repay them 95% of the time. In society B, the repayment rate is a mere 5%. Would we really recommend that B-citizens be more trusting?

In such a context, trust is individually stupid and collectively inefficient; we have no reason to think that people who fraudulently ask for loans are really more likely to need the money than those whom they ask. Indeed, to even call the "loan" an indicator of trust in such a context is to redefine the concept into something a lot more like "charity" or "altruism."

Society B's problem isn't a lack of trust, it's a lack of trustworthiness: not enough people are paying back their loans. Now, I'm not saying that Singapore is closer to B; I honestly don't know. But without data on this, the "trust" question is pretty meaningless. And social scientists that fail to take this into account will often miss the point.

That said, trust does matter a great deal when one thinks about social mobility. Say you grow up in an untrustworthy subculture, but move into one significantly more trustworthy--from B to A, for example. If you retain your distrustful habits, you will still refuse to make loans--even if the now-relevant repayment rate means it would be both individually rational and collectively efficient to do so. You will take fewer risks, and because you do, you will only update your beliefs about trustworthiness slowly. Now compare that to a trusting person who moves to Society B. He'll get ripped off a few times, but precisely because he's taking more risks than he should, he will fairly quickly update his expectations and come to a new equilibrium.

Bottom line: if Singaporeans don't trust enough, maybe they have good reasons--and maybe that's the real problem. But a lack of trust may indeed be a handicap for those whose prior beliefs of trustworthiness are unduly pessimistic.

"When I use a word," Humpty-Dumpty said, in rather a scornful tone, "it means just what I choose it to mean -- neither more nor less." "The question is," said Alice, "whether you CAN make words mean so many different things." "The question is," said Humpty-Dumpty, "which is to be master -- that's all." So, what's a family and what's the point of marriage and what are Socrates's favorite tricks in debates?

I'm back from a wedding in north of Dallas, and I see that Will has written thoughts I agree with about why marriage cannot simply before the point of having a family: the elderly and the infertile wed, and this is all well and good and no one expects them to adopt to validate their union. The groom's grandfather, for one: nearing 100, married to his third wife after outliving the first two.

I had never before attended a Southern Baptist wedding, so I'm not sure if the vows the couple exchanged are standard in that denomination. It's possible that the couple wrote the vows themselves, but no one ever mentioned this (ok, I want to believe that these aren't my cousin (the groom)'s beliefs). The groom swore to protect his bride's purity and holiness before God, giving up his life for that end if necessary. The bride swore to dedicate her life to following her husband in his quests and journeys, although her vows did not specifically indicate that she was expected to sacrifice her life to help him achieve this. They did leave out the "obey" line.

Are gender-specific vows common? -- I would never swear to follow and support a husband unless he would do the same for me (yes, I realize that a couple can make their own promises on this matter, just not recite them on the alter). What does it mean, and how, can someone else protect your soul -- isn't that one's own responsibility (don't bring home a golden calf, but in the end, what you do with an idol is your own decision)?

UPDATE: A reader who's attended several Southern Baptist weddings emails to tell me that he's never heard these vows before, although Southern Baptist churches enjoy autonomy and the ones he has been at were less conservative ones.

Somehow, this talk of weddings and vows reminds me of an exchange I had in a class several years ago. We were discussing modern Southern womanhood in the context of Democracy in America. After I said that it would be a waste of $30K/year tuition (and the education I learned from it) to do nothing more with my life than raise children, another girl accused me of clearly not being from the South (she was from Houston... sketchy).

I shouted back at her: "what do you mean I'm a bad Southerner? I have two blueberry sour cream pies cooling on my window sill right now!" I admit I was in a testy mood: it was a 9:00am class and thanks to the pies, I had gotten up quite early.

Henry: It’s to do with knowing and being known. I remember how it stopped seeming odd that in biblical Greek knowing was used for making love. Whosit knew so-and-so. Carnal knowledge. It’s what lovers trust each other with. Knowledge of the other, not of the flesh but through the flesh, knowledge of self, the real him, the real her, in extremis, the mask slipped from the face.
from The Real Thing, by Tom Stoppard

They're suing.

PinkDreamPoppies has the original post, Begging to Differ has a picture of Miriam (clothed), and The Curmudgeonly Clerk has a legal analysis. Steve at Begging to Differ doesn't express a legal opinion, PinkDreamPoppies seems to think the deceived men are dead in the water. The Clerk has quite the opposite opinion.

Being neither well-read nor well-schooled in the law of sexual assault, I can't doubt The Clerk's anaylsis. But I can question it. And in particular, I can question the wisdom of the rule of informed consent. As I started to ruminate in my last post, there are a whole lot of different permutations of this problem. The Clerk cautions us that "one may as readily deceive via omission as by affirmative misrepresentation." But if that's so, then what exactly must I avoid deceiving my future partners about? Does the rule change with the level of intimacy involved, or does a single kiss or caress delivered in the absence of full disclosure trigger the sexual assault barrier?

After all, most of us have standards about who we'll sleep with, kiss, and otherwise associate with romantically. Consider the following (far from complete) list:

1. Being HIV+
2. Being of a particular gender
3. Being of ambiguous gender
4. Being a communist
5. Being an atheist
6. Being a convicted felon
7. Being a convicted sex offender
8. Being very bad in bed
9. Having an obsessive personality
10. Being married
11. Being engaged
12. Being in a long-term non-marital relationship
13. Having bad breath
14. Having some deformity that is generally concealed by clothing
15. Having one's lower body covered in tattoos
16. Being under the age of majority
17. Being about twenty years older than one looks

To paraphrase the Curmudgeonly Clerk, "One might reasonably consent to sex with (somebody) but refuse consent if appraised of the fact that (any of the above)." Does it make a difference if the sexual conduct at issue is much less than sex? What about kissing? A turn on the dance floor?

It seems like a very bad idea to me to require those meeting some of the above 17 states to disclose them before having sex, let alone before trading a quick "goodnight kiss", lest first dates turn into confessionals. "Well, let's see, I had cancer once, but it's gone into remission, I was convicted of torturing cats when I was 19, I'm a terrible kisser, and I voted for Barry Goldwater." "All right, dear, I've been married six times to three different women. I beat my first wife whenever I was drunk and my second wife whenever I was sober. I'm also 49, despite looking 34, thanks to plastic surgery and rogaine. Oh, and after a woman shows even the slightest bit of interest in me, I usually write her really mawkish love poetry and call and read it to her on her office voicemail." Much as I generally believe in openness and honesty, a rule of full disclosure of all possibly objectionable details before any sexual conduct would take all of the nasty surprises out of dating, and with them, no small part of the funny stories to tell afterwards.

This isn't to say one can't draw lines among this behavior. I (tentatively) think that one probably ought to reveal 1, 2, 3, 7, 10, 11, 12, 15, and 16 before sexual intimacy, and some smaller number of those before other, lesser intimacies. The trouble is figuring out reasonable ways to draw legal lines among this behavior. It seems to me there are two good choices, and a lot of bad ones.

A bad choice is to trust this to the personal judgment of trial judges administering the common law without the help of much precedent. Is the harm of being given HIV greater than or less than the harm of having committed an unwittingly homosexual act? Is one harmed more by kissing a transsexual or an atheist? What if one's (sincerely held) religious beliefs consign one to hell for extra-faith relations? A trial judge could, I suppose, judge all of these things based purely on the emotional anguish they produce in the deceived, but surely that's not such a great idea. Should a Communist who conceals his political affiliation be punished because he happens to get together with a non-Communist? If this sort of ad hoc adjudication is to be the rule, then PinkDreamPoppies's fear that a successful tort here could "further reinforc(e) anti-trans prejudice" has some basis. For surely prejudice is what will determine whether unwitting sexual conduct with a transsexual is a harm while (perhaps) unwitting sexual conduct with, say, an African-American is not.

Luckily, there are good ways to resolve this dilemma as well. One is to limit the torts to sex or sexual conduct that poses the risk of concrete physical harms. Under this system, one would have to disclose that one had a communicable disease (or had quite possibly acquired one through infidelity, as in Neal v. Neal), but not that one was married, male or maladjusted. This rule also would help us decide what conducts required what disclosure. AIDS can't be spread by kissing (barring open mouth sores) or by a quick caress or turn about the ballroom, so this contact wouldn't require one to disclose one's HIV status (though one might have to mention mononucleosis or a nasty flu).

Of course, this may not be enough of a solution for some, especially those who sympathize with the Sky plaintiffs. There's an alternative good solution-- line-drawing by statute. [As Justice Scalia has said, "One of the benefits of leaving regulation . . . to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion."] Thus people can simply decide that HIV status, gender, marital status, and taste in music are such important matters that consent is not truly consent if they are not known. And having decided these things, they could write them down, put them in duly enacted laws, and then everybody would know ahead of time what they had to disclose to whom (in theory), and who to complain to if they wanted to change it. Statutes of full disclosure may not always be wise, but at least they are fair. A common law rule of "informed consent" that tries to group transsexuals, AIDS sufferers, and philanderers in one category, but puts racial minorities, the tattooed, and the romantically pathetic in a second category is both unwisde and unfair.

Sky's reality T.V. show was very mean, very nasty, more than a little tasteless. [And also somewhat revealing and perhaps even funny.] But people have sex all the time without knowing everything they would like to, sometimes even because they've been deliberately deceived. That's why we let people change their mind about whether to have sex both between episodes and sometimes even during them. It's unrealistic and unreasonable to demand full disclosure of everything that could possibly be objectionable to one's partner. It's also a bad idea to tell judges to just figure out which qualities it would be "reasonable" to object to and which it would not. If we're going to have rules of disclosure, we should do it either by strict enumeration through validly enacted statutes, or a sensible bright-line legal rule.

Again, I'm making no assertions about The Clerk's interpretation of the law (which might be different in England anyway), but I do think that if his interpretation of the law is right (and I assume it is), then it's unfair to transsexuals, and dangerous to anyone who has secrets she doesn't wish to tell to everybody she kisses.

[Note: I haven't considered whether a First Amendment right "not to speak" might secure one's right to keep personal secrets, even from pillowmates, or whether Planned Parenthood v. Casey's "right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life" might give this First Amendment right special strength where one's own sexual identity is concerned.

In both cases, this protection probably wouldn't help Miriam or Sky since this case involves money, which always makes the Court uneasy, and it took place in England, which sorta limits our Court's jurisdiction.]

(Via Southern Appeal) Now, look. I like bourbon as much as the next guy, but a bottle of Blanton's on your masthead? Isn't that a little excessive?

[You're just jealous because your co-bloggers gave you some dumb ol' gargoyle instead.--ed. Oh, go bother Mickey Kaus.]

Before departing for her more permanent blog-home, Sara Butler left us with a long post about "the point" of marriage, wherein she argued:

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.

What do we think when we hear that two 70-year-olds get married (usually because their earlier marriages were ended either by the spouse's death or divorce)? I take it that it's usually, "How sweet." Old love makes us smile just as young love does, and a desire to express lifelong commitment seems noble and worthy at any age. Sure, there likely won't be any pitter-patter of little feet coming from that marriage, but so what?
(read the whole thing)

As the CS folks invited me over here thanks to my vice policy blog, I thought that I might take a second at the beginning of my guest week to mention why I think studying vice is important. First, vice is inherently interesting, no? Contemplating that mixture of pleasure and wickedness continues to amuse. Second, vice policy actually has a more direct effect on most Americans, I would submit, than lots of more familiar policy areas, such as housing policy or maybe even defense policy. For many Americans, vice will serve as their unintended introduction to the criminal justice system: drunk driving and possession of illegal drugs are the two most common reasons for arrest, with other alcohol-related infractions not too far down the list, either. Few families, alas, have been untouched by tragedies associated with drug, alcohol, or gambling addiction. Even folks who have managed to avoid a direct confrontation with vice find that their Constitutional rights are often delimited via vicious activity. In the US, the extent to which speech is protected against government control is set, in large measure, by Supreme Court decisions concerning attempts to regulate pornography and erotic dancing. Much of the government's scope for conducting searches has been mapped out by judicial rulings pertaining to investigations aimed at illegal drugs (and earlier, by enforcement of anti-gambling laws.) And last but not least, of course, how can one really understand the opposite of vice without possessing a passing familiarity with vice itself? Here I submit as evidence the opinion of Fanny Hill, heroine of the famous eighteenth century pornographic novel, Memoirs of a Woman of Pleasure: "if I have painted vice all in its gayest colours, if I have deck'd it with flowers, it has been solely in order to make the worthier, the solemner sacrifice of it, to virtue."