If you read my very-long musings on the nature of identity, disclosure, and consent, rest assured. This post will be much shorter.

Enthymeme and The Curmudgeonly Clerk purport to have found a legal standard that will divide disclosure of one's gender, transsexual status, and HIV status from one's religion, tattooedness, or (perhaps) age.

Remember, my concern was:

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?

(A) cause of action in battery will lie, and consent will be ineffective, if the consenting person was mistaken about the nature and quality of the invasion intended.

For example, if one consents to sexual relations with an atheist, having done so due to being deceived to the effect that one's partner is actually a devout coreligionist, the sexual acts to which consent was given remain of precisely the same nature and quality. What we have in such a situation is fraud in the inducement, not fraud in fact (i.e., no material misrepresentation about the sex act itself is at issue). In the instance of a pre-operative transsexual, the actual nature and quality of the physical acts extracted by deception are other than those for which consent was granted (i.e., homosexual as opposed to heterosexual sexual relations). The fraud in this instance goes to the very essence of the acts involved (i.e., most people do consider whether a potential partner has a penis to be a material consideration one way or the other).

The Curmudgeonly Clerk may have "most carefully written and documented" blog, but Stuart Buck may be trying to give him a run for it. Stuart Buck's latest post on Racial Discrimination and Judicial Nominations is, well, everything you could ever want to know and then some.

Well, it was bound to happen. The same day that I complain about how search and seizure law is skewed because the cases that come to trial involve factually guilty criminals, the Supreme Court hears a search and seizure case that involves perfectly innocent searchees. According to this article (registration required) in the Chicago Tribune, the warrant for a weapons search of a Montana residence in 1997 failed to list the weapons that were being sought. No weapons were found. The residents of the home then sued the police officers involved, and one of the officers has appealed to the Supreme Court an earlier federal district court ruling that the suit could proceed, i.e., that the officer is not immune from suit. "The agent had asserted he was immune because he was acting in good faith in his capacity as a law-enforcement officer and because the law was unclear."

Apparently the officer's lawyer, along with a lawyer for the Bush administration, argued that the warrant itself met Constitutional guidelines, despite its lack of specificity. This will be a tough sell to the Supremes, though that is not the main point at issue. "The key legal question is whether an officer who relies on a defective warrant when conducting a search can be liable to the homeowners for damages."

Once again I can't pretend to know the right answer to that question...

...but there have to be some consequences for police who conduct illegal searches. In fact, if there really were serious consequences for illegal searches, the exclusionary rule would be unnecessary. The exclusionary rule exists because it has proved so difficult for meaningful sanctions to be brought against police who conduct illegal searches. Prior to the exclusionary rule, the lack of meaningful sanctions meant that police could simply search as they pleased, and they really wouldn't have to worry about the Constitutional niceties, even after the fact. (More broadly, the lack of ex post enforcement meant that ex ante regulations were rendered nugatory.) The exclusionary rule filled the void of meaningful sanctions for illegal searches, at the cost of letting some factually guilty criminals go free, while helping to shore up those ex ante restrictions on legal searches.

Oh, I need a vice angle. I would argue that ex post sanctions on police (especially via the criminal law) are generally not effective. What happened in the officer prosecutions springing from the Diallo case -- unarmed man minding his own business outside his home shot 19 times by police officers, who were not found criminally liable -- is the norm. It turns out that, in the US, juries generally find the argument that "I saw him move, and I thought I saw a gun, so I had to shoot" to be reasonable. After all, some folks do carry guns and they might try to shoot at an officer, so if the officer believes that is happening, the officer has to have the right to shoot. If the officer is wrong about the gun, it is a tragic error (so juries seem to think), but not a criminal offense. And the juries might be right to reason so.

OK, if you believe me so far, it is very hard to impose ex post (criminal) punishments on police officers, even when they demonstrate very poor judgment in their weapon use. The conclusion for me, then, is that you have to limit police/citizen encounters ex ante, to those that are strictly necessary. Enforcement of laws around "victimless crimes" such as drug possession necessitates all sorts of encounters that are at least low priority and, I would argue, far from necessary. So the inefficiency of policing the police becomes another rationale to decriminalize drugs. We would then have fewer tragedies like the Dorismund and Scott cases.

OK, this one roamed far afield....

En Banc is now using a font that doesn't hurt my eyes. This is good.

All losses haunt us. It was a reprieve made Doestoevesky talk out queer and clear.

"What does a villanelle know?" asked Professor Michael Wood tonight. "And can it lie?" He spent an hour talking about two villanelles-- the first a rather depressingly clotted one by William Empson, whose refrain is "the waste remains, the waste remains and kills . . . slowly the poison the whole blood stream fills." Uplifting stuff.

A Villanelle, for those not in the know, is a 19-line poem based on a centuries-old French Pop song. The most famous example is perhaps Dylan Thomas's Do Not Go Gentle Into That Good Night. In any case, the basic schtick is that two different lines make up nearly half the poem, and the whole poem can have only two different rhyme sounds. It's therefore got a sort of repetitive, sing-songy quality, which (Wood warns us) can make the poem "heavy." Elizabeth Bishop avoids this by cheating with the form. W.H. Auden avoids it through clever choice of words. Dylan Thomas through sheer force of will. William Empson doesn't avoid it. His villanelle is very heavy.

Wood's basic idea of the night is that villanelles are particularly adept at talking about loss, perhaps because of the complicated way they have of bringing the same ideas up again and again. (You know the kind of persistent resurgence I'm talking about).

"A villanelle," he told us, "will always deny the loss it speaks of. Or if not deny it, then complicate . . ." Or, quoting Empson, "'Life is essentially inadequate to the human spirit, but a good life must avoid saying so.'" "But what about a good poem?" he added.

And now this blog post is going to meander on into the incoherent. You've been warned.

Anyway, this sort of tantalization for half an hour brought us to Elizabeth Bishop's One Art. Careful readers will remember I've posted this (Volokh-approved) poem before. Here is Bishop's One Art once more:

The art of losing isn't hard to master;
so many things seem filled with the intent
to be lost that their loss is no disaster.

Lose something every day. Accept the fluster
of lost door keys, the hour badly spent.
The art of losing isn't hard to master.

Then practice losing farther, losing faster:
places, and names, and where it was you meant
to travel. None of these will bring disaster.

I lost my mother's watch. And look! my last, or
next-to-last, of three loved houses went.
The art of losing isn't hard to master.

I lost two cities, lovely ones. And, vaster,
some realms I owned, two rivers, a continent.
I miss them, but it wasn't a disaster.

--Even losing you (the joking voice, a gesture
I love) I shan't have lied. It's evident
the art of losing's not too hard to master
though it may look like (Write it!) like disaster.

There's no point trying to recapture Wood's explication of the poem (accurately, his explication of the various options in explicating the poem). His research included consultations with all of the (revealing!) drafts of the poem in the Vassar library. One of our New York-based bloggers (Amy?) should go investigate.

"Everything depends on what you mean by mastering, and whether you want to master it." What does it mean to "master" losing? To lose lots of things, or to learn to live with it? And how does the role of possession play in? After all, "Proust discovered you can regain time, but only because he hadn't really lost it."

One essential question of the poem, which is hammered home by the last stanza (which Volokh didn't as much care for)-- to feel the loss of a person, does that mean you have to have possessed the person in the first place? Wood's answer: "It is possible-- painfully possible-- to lose what one never possessed." And that's somehow the whole point.

I'm fantastically good at losing things, says Elizabeth Bishop. Keys, time, names, plans, a watch, even a house. By the time she's "losing" realms, cities, continents, we have to understand that she's talking about a different sense of loss, which sets us up for her last point-- that all of that practice losing things can hardly prepare her for losing "the joking voice, a gesture I love."

[Side note: in the first seven or eight drafts of the poem, rather than writing "I shan't have lied," Bishop wrote variations on "that's all a lie." Why did she change her mind? Or did she? "You wouldn't say you weren't lying if there weren't at least the possibility."]

So go find a poem you like tonight. Sit down, get to know it a little better. Read it aloud, memorize it, whatever. But enjoy it. Wood's closing words: Paradise is nothing more than our most fantastic name for loss.

Brian Lieter asks why there are more conservative than liberal law prof blogs, and posts several possible answers. What I think Leiter has overlooked is the degree to which bias in the blogosphere is self-perpetuating. Given that the people most likely to start blogs are those who read blogs, and that the people most likely to read blogs are those who find ample material that agrees with their own viewpoint, one would expect that the blogosphere would disproportionately reflect the ideology of its founders. The upside is that as more and more smart liberals start blogs, more and more liberals generally will be drawn into blogging.

If' I'm right, we should expect to see the rate of formation of liberal prof blogs increase in the future, as more liberals come to see the blogosphere as a public forum, rather than a clubhouse for rightwing nuts.

Occasionally (often) I forget that the issues that seem to be important to the people I go to school with or blog with are issues that tracts of the rest of the population either doesn't care or doesn't know about. According to William Saletan, Carol Moseley-Braun forgets this too:

Most obscure pander: Carol Moseley Braun. "When you start off life both black and female, it is not hard to understand the aspirations of the GLBT community." (Percentage of viewers assuming that Braun was referring to bacon, lettuce, and tomato: 55.)

Venkat Balasubramani directs me to this FindLaw column on whether Scalia should have recused himself from the Pledge of Allegiance case. It's what you'd expect from a FindLaw column, mostly just unoriginal and unassuming with one or two points of error. Anyway, I just wanted to compare the last paragraph of Amar's essay:

Last week, when Janice Rogers Brown, the California Supreme Court Justice who has been nominated for a seat on the U.S. Court of Appeals for the D.C. Circuit, was asked by a Senator whether she thought the infamous 1905 decision in Lochner v. New York -- where the Court invalidated a New York law regulating the maximum number of hours bakers could work on the ground that the law violated the "freedom of contract" protected by the Fourteenth Amendment -- was correct, she balked at giving a straight answer.

Brown: 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. . .

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.

Maria Farrell, at Crooked Timber, asks an interesting question:

Why is it that people with ‘real’ illnesses like heart disease, cancer or ‘flu can receive unqualified sympathy and support. . . . (But) we find it so damn hard to offer heartfelt sympathy and support to people with mental illness?

Sara Butler has linked to this article criticizing the chick lit movement. However, as the casual comment at the end of this post by Ampersand guest-blogger PinkDreamPoppies shows, the problem runs much deeper than the Bridget-Jonesification of contemporary female literature. The money quote:

The only thing I regret about the book is that fewer boys will read it because its main character is a girl.

The problem is not merely that much of what is specifically marketed to women these days is shallow and superficial--the problem is that just about everything either written by a woman or featuring a woman protagonist is assumed to be chick lit of one sort or another. When a man writes a novel about a man, it's assumed to be a statement on the human condition, but when a woman writes a novel about a woman, it's assumed to be a statement on the female condition, and hence largely irrelevant to half the population. I'm constantly amazed at the number of men--even men with literary pretentions--who are willing to dismisses the works of Jane Austen, the Bronte sisters, or Margaret Atwood as "boring", "silly", or "just not my thing" without having read a word of the works in question (there are, of course, notable exceptions). This, in turn, encourages female writers to limit their subject matter to arenas traditionally regarded as feminine--romantic entanglements, domestic disputes, or tales of women struggling against the patriarchy. When a large segment of the male reading population dismisses female works out of hand, female authors have little reason to write in a way that will challenge or enlarge the male perception of the female perspective. Rather, the tendency is to write to an audience assumed to be primed to identify and sympathize with the protagonist's struggles, because her life resembles their own.

Furthermore, when it comes to popular fiction, traditionally male generes are regarded as much more prestigous than traditionally female genres. The western, the horror story, the mystery novel, the fantasy--these all have their advocates in the academy. One can take classes that discuss and take seriously the potential to create literature within the confines of the generic conventions. However, female-oriented romance novels only gain academic attention from feminist theorists descrying the backwardness of the values they preach. Yes, most romance novels are bad. But so are most fantasy novels, yet this didn't stop the U of C from offering a course on the exceptions last spring (the glee with which the enrolled students purchased their textbooks from the Seminary Co-op was quite something to behold).

I wish I knew what to do about this problem, but I don't, and quite frankly the whole thing leaves me rather depressed and inclined to believe that true equality of the sexes will never be achieved.