The Conservatism Blog is up in arms about judicial selection or abortion, I can't quite tell which. He writes:

Through the gross negligence of continually filibustering appellate court nominees, the Democratic Party has proven once again that it's a party with but one (disgusting) issue: abortion. . . In my short life, I have not seen a more repulsive and obvious example of Democrat obstructionism. Judge[sic] Miguel Estrada, Judge Priscilla Owen, and whoever else is to be put up for confirmation aren't required to hold a particular belief on abortion to be qualified. There shouldn't be a litmus test on ONE issue to determine qualification.

Till Death do us...:

Amy confesses below her failure to find universal prohibitions on incest throughout human history. But then, there's also no universal human prohibition on suicide. In addition to the semi-rational suicides that abound throughout literature (from Shakespeare, to various martyrs, to the "captain goes down with his ship" bit), the most obvious example I can think of is the Japene code of honor, Bushido and all the rest. And of course Muslim women have thrown themselves on their husbands funeral pyres for centuries. These institutionalized suicides are generally frowned upon in the west, but there's little case to be made that the American view of suicide has always been the universal one.

UPDATE: Reader Brian Ulrich writes to tell me that Islam has a strong preference for life, and I am actually thinking of the Hindu practice of sati. Thanks.

Rational or no?:

Nick Tarasen still thinks that the government shouldn't be in the business of determining who's rational. I understand his squeamishness, but I do think it's not fundamentally wrong to say that the government can say that some things are so likely to be chosen wrongly that a prophylactic rule does far more good than harm. One example is in criminal procedure-- a confession by a suspect is generally inadmissible if the suspect hasn't been read his miranda rights or received a lawyer; the government holds that it's irrational to confess that early, because it's too worried about officers beating confessions out of suspects. A different sort of example are speed limits-- Even if you promise to be fully liable for any damage you cause while driving, we install certain traffic rules because ex ante safety rules are so much more effecient than ex post ones. (Full Disclosure: I've thought a lot about speed limits since they were the third question in my Truman interview: "Aren't libertarians against speed limits?")

My understanding is that this is the common understanding of much of contract law-- unless you can explain why you did it, the court is unlikely to uphold a contract where you promise to give away a million dollars for nothing. I think these rare presumptions of irrationality are good, possibly even necessary, for any society that plans to rely on property and contract law, as most libertarian societies do.

Better Luck Tomorrow:

Pardon the vagueness; I'm trying to talk about this movie while erring on the side of not revealing anything that the trailors don't. As the ads explain, Ben, Han, Virgil, and Darik are the "overacheiver, muscle, clown, and mastermind." Ben narrates, Han protects and beats up his cousin Virg. They're wealthy Asian high school students, with their "A's their passport to freedom," and caught up in a world of things I never did in high school --- create a lucrative exam cheat sheet business, fence stolen goods, others I won't reveal, join ridiculous numbers of extra-curriculars (oh, wait....). Critics were mixed in their review; I and my friends were deeply impressed.

At one point in the movie, someone dies. This is probably the most chilling scene in the movie, which is full of sad and disturbing scenes. One character keeps repeating the mantra, "Hang on, Virg, hang on, just a minute longer, hang on, it will all be ok, Ben, don't worry, it will all be ok, don't worry, it will all be ok, don't worry, just hang on, hang on." These are the words we all hear, say, use for comfort. The filmmakers do a wonderful job at creating sympathy for these questions. As he spoke, I did want the characters to be comforted, despite the horror of what they'd done.

Later, Ben talks to himself: the right thing to do is go to the police and explain what happened. And yet, I don't want him to turn himself in, I don't want them to get caught. Despite everything, he is a good fellow, sympathetic and empathetic when he talks with his friends, hurt by what's going on. Han beats up his cousin, the 'abused puppy-dog you keep around to kick,' but also protects him, follows Virg when no one else will, loves him. Virgil is the child-like one, sometimes apparently amoral, most dangerous because he's without restraints, but then he cries, and all that appears a mask, thick and rarely cracked. Darik, I'm not sure about. Maybe he does have less of a soul than any of the rest of them, but if he's revealed, they'd all hang together. The death was unintended--it was supposed to be a warning, for "everybody needs a wake-up call"--but carry enough guns around and things can get out of hand fast. $300, evidently, is the price charged to bury a body in some other fellow's back yard. I don't know what will happen to these boys if they don't get caught. Presumably, they're off to high-class educations from the Ivy's. After that, business or med school, a life as a presumably productive and worthwhile member of society, this period of time denied and excised. At least, that's what I want for them: that it never happened. At the moment of the film, all alternatives other than self-denial, self-forgetting, seemed worse fates.

The Safety of Roe:

Matthew Yglesias echoes a concern I hear a lot about an O'Connor retirement-- that her replacement will decide the future of Roe v. Wade and Planned Parenthood v. Casey.

I'm unconvinced. Planned Parenthood v. Casey was written in part by Justice Kennedy. Add Souter, Breyer, Ginsburg and Stevens and you get five. Some people seem to think that because of his recent dissenting vote in Stenberg v. Carhart, that Kennedy has "changed his mind" and is no longer a dependable supporter. I don't think so. He (along the the Chief Justice) are probably the two strongest supporters of stare decisis on the court, and the partial birth abortion case is just a signal that Kennedy is a moderate on this issue. So if O'Connor is replaced by somebody very conservative, state partial birth abortion would probably become legal, but I highly doubt Roe would go anywhere.

And of course, here are the requisite quotes from Kennedy's Carhart dissent:

Nebraska must obey the legal regime which has declared the right of the woman to have an abortion before viability.

Casey addressed the question “whether the State can resolve … philosophic questions [about abortion] in such a definitive way that a woman lacks all choice in the matter.” 505 U.S., at 850. We decided the issue against the State, holding that a woman cannot be deprived of the opportunity to make reproductive decisions.

The Court’s holding stems from misunderstanding the record, misinterpretation of Casey, outright refusal to respect the law of a State, and statutory construction in conflict with settled rules . . . The State chose to forbid a procedure many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life, while the State still protected the woman’s autonomous right of choice as reaffirmed in Casey. The Court closes its eyes to these profound concerns. (emphasis added)/

This and That:

William Saletan, on the Al-Qaeda/Iraq link:

You inserted a battle that could have waited into a war that couldn't, precisely because you lacked—or thought we lacked—patience for the slow, diffuse, half-invisible struggle against the people who hit us on Sept. 11. You wanted a quick, clear victory, and you got it. But don't flatter yourself. You haven't changed the world in 19 months. You've only changed the subject.

McCain-Feingold:

So the district court opinion in the BCRA campaign finance act is available. I was about to print it out, and then noticed that we were talking about 2000 pages, and while the USITE Crerar folks are oblivious, they aren't that oblivious.

The question is, how much will anything in there be useful to think about for my midterm on this bill on Monday?

Still More on Incest:

After a bit of journal-searching on the subject of incest, it turns out that incest prohibitions are not nearly as universal as people claim. Royal incest is surprisingly common--among others, the Egyptian, Incan, Polynesian, and Hawaiian monarchies (and sometimes the high nobility) all practiced brother-sister marriage. Many people regard these cases as the exceptions that prove the rule. That only families claiming to harbor deities could violate the incest taboo shows not just the strength of such families, but also the strength of the taboo for the rest of society. Nevertheless, this doesn't explain the case of incest in Late-Roman Egypt, where brother-sister marriage was practiced by people of all social classes for at least several centuries. ("Husbands and Wives: Inheritance and Work Brother-Sister Marriage in Roman Egypt" Keith Hopkins, Comparative Studies in Society and History, Vol. 22, No. 3. (Jul., 1980), pp. 303-354.) There goes my plan to justify calling incest obviously irrational (like suicide) based upon universal prohibition.

to reply to Will below:

NYT: yes, but that's all of the NYT 36 hours stories -- food, shopping, very lite culture (art galleries), and some sort of booze-based nightlife. I don't recall ever seeing a a city's theaters or symphony praised. Hmm... biased? And why not musuems? Adler's got new sharks, Chicago Historical Society's got Chicago.... Or parks--sing the praises of the beach--after all that eating.

prom: also, I'm not sure when schools in Baton Rouge quit chosing (if they have quit having these--anyone know?) separate black and white homecoming courts. My public high school didn't have them, but we didn't have homecoming. I know they existed at some of the public high schools at some point during my preK-12 years.

Rationality and Law:

Nick Tarasen catches wind of Amy's comments below about incest and rationality. He writes:

Who is the government to set the threshold (one "h" or two?) on rationality?

But Equal?:

A white-only prom in Georgia really speaks for itself.

Sweet Home?:

The New York Times contains a rather scary 36-hours-in-Chicago trip that doesn't look to me like one of the better ways you could spend your weekend. They focus entirely on Wicker Park, acknowledging that Chicago is much too big and has too much neat stuff to do it all in a day and a half, but they then seem to miss almost all of that neat stuff.

The claim is that the article "let's you see how some of the locals might spend the weekend." Maybe. But I'm not sure that it's particularly desirable to imitate these locals. The Chicago the New York Times offers looks a lot like the there's-nothing-in-the-midwest-except-food-and-alcohol Chicago that a lot of New Yorkers believe in (and a few old buildings).

Exogeneity:

I don't want to go on record as defending the President's economic policies or his national secutiry polices, but.... Matthew Yglesias writes:

Welcome to Bush's dilemma -- either the War on Terror is going well, in which case GWB bares responsibility for the economy, or else the economy can be blamed on terrorism, but Bush's counterterrorist efforts are failing. Either way, you can't spin your way out of the fact that objective conditions in this country are deteriorating.

Chicago Consolidations:

So now Eugene Volokh has taken Daniel Drezner into the conspiracy, but only for a few days, he says.

I figure it's probably a good idea:

When I first came to Chicago, I did not speak in class. Fairly early on, I decided silence was not wise and set a requirement for myself: I must speak in class three times each day. My core classes were all reasonable-sized discussions, so the quota worked well.

Three years later, I still don't much like speaking in class; I just prefer it greatly to sitting there in dumb silence. Actually, I do enjoy speaking in a few classes, such as Professor Veeder's. I think it's because his approach is a close textual analysis, so I can see what I'm thinking about on the page in front of me; because I've loved nearly all the books I've studied with him; and because I really like him and feel comfortable around him. The smile is key. His tend toward to be encouraging and full of delight. Others verge on intimidating smirks, yet there's a great triumph that comes from responding and returning one in kind. Both types of smiles give a response to what I'm saying, which is crucial when speaking extemporaneously. I find it easier to craft an argument in response to objections when I'm writing than when I'm speaking, particuarly since I'm under no pressure to respond immediately to any complaints. But in speaking, because it's possible to sometimes tell how I'm being received, I keep looking to make sure I'm being understood. Unfortunately, it seems I'm baffling. And once I figure that's the response, well, I'll just sit down, no need to waste any more of ya'll's time.

I know I need to work on speaking more clearly. Even my family has trouble understanding me. They've been known to stand around in front of me, discussing what I just said to figure its meaning. while I decide my presence is no longer needed, I might as well leave.

Chicago's just not the place to study public speaking. The GSB has a group of Toastmasters. I'll check out their meeting tomorrow [that, incidentally, is why I'm posting this. It's much harder to back down on announced plans.] I wish there were something other than Toastmasters, something less official. This group is rather too much a business for my tastes, and sounds rather cultish at that. Nor do they have particuarly useful entries #1--#9 on their list of how to improve your speaking (#10 is experience. well, duh). So, I'll do it, I'll see how it goes, and hopefully it will help. I can't think of anything else to try (ok, so there's the Edmund Burke Society. spare me).

UPDATE: well, that failed. The Toastmasters weren't where their website said they'd be.

Incest and Consent

After reading two editorials in our student paper advocating the legalization of incest (I wonder how Santorum would feel if he knew his remarks were energizing the pro-incest lobby?), one written by my estimable co-blogger, the other by the president of the campus libertarian group, I'm not convinced that allowing a right to privacy requires allowing every bedroom activity, sexual or otherwise, that doesn't hurt others.

It seems to me that we might wish to hold that there are certain activities that, while hurtful only to one's self, are so obviously hurtful that to consent to them is to show that one is incapable of rational consent. There are certainly people (children, the insane) that we agree are incapable of giving rational consent to an action. If it is true that, not having access to an individual's thoughts, we can only judge their ability to reason rationally by the rationality of their actions, then it seems that we would be justified in agreeing that certain actions are in and of themselves sufficient evidence of mental incompetence. I admit I know next to nothing about suicide law, but it seems that this reasoning would be most applicable there. At the least, though, this sort of logic might provide intellectually honest grounds for regulating incest while not regulating sodomy, though of course we would have to explain what makes suicide or incest so obviously harmful to self that no one could rationally choose them.

Obviously, if we were to follow such reasoning, we would have to set a truly high standard as to what constitutes evidence of incapacitation, and it would also seem that, since the individual was incapable of consent, they should not be jailed for their actions. That said, I think there's something extremely disturbing about giving the government the power to decide not just what is legal or illegal, but what is rational or irrational. But if it already does this at a certain level, why not extend the logic to incest? Perhaps someone with more knowledge of the laws regarding suicide or the determination of mental competence can weigh in on this one.

Warm and Fuzzy:

As if to prove that not all Libertarian Law scholars are evil and out to abolish all that liberals stand for, Richard Epstein has a piece arguing that Affirmative Action laws are constitutional, even if ill-advised, largely on the basis of the freedom of association that gave the Boy Scouts the right to exclude homosexuals. The folks at legalguy disagree, though in my opinion they don't give Epstein enough credit.

Word Games:

(Via Diotima) Michigan is now attempting to define partial birth abortions away (by changing the definition of "birth" and thus rendering them infanticide). I haven't read Sternberg v. Carhart in a while, and didn't particularly enjoy it when I did, so I'm not positive about the constitutionality of this, but I think it's probably generally defensible. Assuming the state can come up with a fairly reasonable justification for its definition (it will probably only have to undergo rational basis review, or possibly some intermediate form of scrutiny), then it probably has the prerogative to decide this.

I'd be interested to hear thoughts from anybody about any interesting consequences this decision may have in terms of application to other laws. (Other than increasing the age of every new child in Michigan by a few minutes and slightly increasing infant mortality rates).

A Sense of Direction:

So as anybody who has been reading for the past week can tell, the blog has just doubled in size, bringing together what were once five seperate blogs, plus my brother's proto-blog. Obviously there are some advantages and disadvantages, both to group-blogging in general and to this group specifically, which I won't rehearse here.

Given our history of fairly drawn out blog-arguments amongst ourselves, I want to warn our readers that this blog will probably be more self-referential than many group blogs. That is, I don't think anybody is going to stop voicing disagreement and qualification with anybody else here simply because we're all on the same page. We span too broad of an ideology and viewpoint for that to work. That said, I hope that this won't seem like some sort of painful amalgam of separate bloggers but rather a coherent (if not cohesive) forum.

As the blog title says, "let opinions be increased." Enjoy.

And So On:

Only upon condition of our recent name change and future facelift, Amy Lamboley of The Crooked Heart has decided to come under our auspices. Look for her posts in the future.

Gambling:

One more thought about state-run gambling. Making the "price" of gambling higher creates a bit of a public choice paradox. I presume that what's bad about gambling is that people don't realize that they're going to lose their shirts, and that the state has some sort of paternal obligation to force them to account for their myopia. But people lose more when they gamble at terrible odds than when they gamble at good odds. I'm not sure that it's worse for a girl to play a slot machine that gives her 95 cents per dollar than it is for her to enter the state lotto at 50 cents on the dollar.

Now, maybe this creates fewer "addicts" because fewer people start playing in the beginning, but to the extent that a lot of people are already "addicted," it's not clear how much the state helps them by simply soaking them for ten times as much as the market would. And I also think the evidence is pretty shaky that state-run lottos avoid creating new "addicts". If the problem with gambling is that it takes money from the stupid or the shortsighted, is the problem made better by taking even more of their money?

Of course, it's possible that gambling is wrong for some external moral reason-- that neutral or even winning bets are "bad" in some cosmic sense. But if that's the case, I'm not sure why it's true, and the American emphasis on entrepreneurship shows that any sense of risk-as-immorality isn't borne out across the board.

And with total irrelevance, a quote:

Player: Life is a gamble, at terrible odds-- if it was a bet you wouldn't take it.

Tom Stoppard— Rosencrantz and Guildenstern are Dead

Ramifications:

I hope people who like Matthew Yglesias really believe what he's saying about consenting adults and closed doors:

Well of course it's dangerous to say that "whatever" you do behind closed doors is your right to privacy. What if you shot somebody? That would be terrible. But how dangerous is it really supposed to be to say that whatever two consenting adults want to do to each other behind closed doors is their right to privacy? It's not a danger to me.

More vice:

Will points out here the dangers of trusting states "not not use vice to their own advantage." I'm hardly one to be accused of trusting states, but I'm not sure that's the only, or even the main, argument for giving states vice-monopolies. It seems to me that it's really just comes down to the perceived desirability of monopolies. The whole point is that a profit maximizing monopoly will have higher prices, and thus lower output, than an identical industry organized competitively. In terms of vice, this translates to higher prices for drugs, gambling, alcohol, and the like, and fewer addicts. (It's pretty clear that prices are higher under state gambling monopolies than under competitive conditions; compare state lotteries, which typically pay off at most 50 cents on the dollar, with Las Vegas, where some slot machines, as I recall, have over 98% payout rates, and playing Basic Strategy in blackjack gets you up to somewhere near 95%).

So if one believes in a downward-sloping demand curve for even 'addictive' goods--and darn it, at Chicago, we should!--then a monopoly, whoever runs it, will mean less vice than a competitively-run vice sector. This doesn't mean that the states aren't grubby little rent-extractors, or that there isn't anything morally problematic about the Illinois public lottery paying for huge billboards to get people hooked on gambling. It just means that what we usually hate about monopolies is generally considered a net benefit when talking about vice.

That said, this whole comparison has been between state monopolies and competitive markets. Since almost nobody (alas) talks seriously about free markets in vice, it's perhaps not the most relevant comparison. While state monopolies are likely to have higher prices and hence lower output than competitive markets, the (full, including jail-time) price of illicit vice is almost certainly far higher, and thus output lower still. Prohibition may have brought on a crime wave, but it did reduce the incidence of liver cirrhosis. State monopolies are thus a middle ground between illegality and competition.

Summary from Slate:

Slate rounds up coverage here on the new France-Germany-etc. military headquarters. Le Monde is a little frightening, writing:

"[Tony Blair believes] the European Union must side with the United States, especially in times of serious international crisis. This is far removed from the ambitions of countries like France, which seek to strengthen Europe in order to act as a counterbalance to Washington's hegemonic desires."

Vice:

Some people have suggested that drugs ought to be legalized and sold only by state monopoly stores. The idea, I think, would be to make sure that the person selling the drugs isn't particularly trying to encourage consumption and doesn't have a profit motive at stake. Well this article on gambling should disabuse anybody of notions that states can be trusted not to use vice to their own advantage.

A Modest Proposal:

Juan Non-Volokh rehearses the shameful history of partisan obstruction on both sides of the judicial nomination process. Democrats kept Bush from filling his seats, so Republicans kept Clinton from . . and so on. I'd like to reiterate a suggestion I made before-- that presidents retain the indefinite right to fill a particular seat even after they leave office (and perhaps pass it on to somebody appropriate once they are dead). This could be combined with a ten year waiting period to avoid strategic court retirements, if you think those would be a problem.

Bulgaria Redux:

More news from Bulgaria: They've introduced a hangover-free vodka. (via Eugene Volokh et. al.)

I have been told that Saki is nearly- or totally- hangover free because it contains so few impurities. Having never drunk Saki to excess (or much at all), I have no idea. Can anybody confirm or deny this?

Death and the Constitution:

I'm not particularly pleased with Eighth Amendment jurisprudence (What would you suggest instead?-- ed. I'll tell you when I'm done with Mr. Wall's exam) so far as the death penalty goes, though I do think that the death penalty is probably undesirable. As Justice Scalia wrote in Atkins v. Virginia,

There is something to be said for the popular aboltion of the death penalty; there is nothing to be said for its incremental abolition by this Court.

Resistance is Futile:

As you can see, we have now also assimilated Peter Northup of Akratic Theory. He'll be assigned a color shortly.

So in my indigenous intellectual rights class today, the discussion turned to that paragon of public interest legislation, the Sonny Bono Copyright Term Extension Act. (For those who avoid thinking about acts of Congress, this is the one that, in the nick of time, tacked on 20 years retroactively to the length of copyright protection, to save the world from the unthinkable catastrophe of unlicensed Mickey Mouse t-shirts). The discussion made me wonder: seeing as how I have never met anyone who defends this bill*, what sort of majority did it command? Someone in class said they believed it had been nearly unanimous; I decided to do a big of google-searching.

I found this colorful description of the process at (yes, I know, don't laugh) the Phyllis Schlafly Report on the 105th Congress (after a listing of exactly how much money the bill's cosponsors were given by Disney):

On a single day, October 7, the Senate Judiciary Committee discharged the bill by unanimous consent, the full Senate passed the bill by unanimous consent (without a roll call), and the House passed the bill by voice vote under suspension of the rules. Clinton signed it on October 27 as Public Law 105-298.

Here I am, an aspiring political theorist, concerned with questions of legitimacy, and one of the few rocks I've been clinging to has been that of unanimity [What about future generations? Who decides the relevant constituency? --ed. Shut up!]. I mean, if Rousseau and Buchanan & Tullock agree on something, how bad can it be? In terms of legitimacy, what more can you really ask for? It's therefore more than a little depressing to see that one of the least defensible acts of Congress I can think of was passed with essentially just that.

I'm sure this isn't a remotely original thought, but it seems to me there's something of a U-curve here. Up to a certain point, as far as majority size goes, More's Law applies (if some is good, more is better); 75% approval confers more legitimacy than 51%. But when we get to unanimity, perhaps there's what we might term the Saddam Effect--it just looks darn suspicious to see everybody supporting something. Perhaps I'm too pessimistic; maybe tons of wonderful legislation passes unanimously. But I find myself a bit doubtful--the pluralist in me, I suppose.

*For those who don't follow such things, here's the nutshell version of why this bill is so obviously terrible: one can argue about what the ideal term for copyright should be, but applying it retroactively rather than prospectively is prima facie evidence that the sponsors didn't really give a damn about encouraging new innovation, but instead merely wanted to let further profits accrue towards who had already benefitted.

Establishment 101:
A post from conservative-land lambasts the court for refusing to deal with a Kentucky case about the Ten Commandments.

For one, the Ten Commandments are one of the bases of modern law. They're historical, like the Code of Hammurabi or the Magna Carta.

More important, the Constitution says NOTHING about requiring states or the country to be anti-God or atheistic. It says "Congress shall make no law RESPECTING AN ESTABLISHMENT of religion...." (Emphasis added.) Does that mean "Congress shall make no law or practice that has anything to do with God or theism"? No, it means that there shouldn't be any laws that infringe on others' rights to be religious or spiritual in whatever way they so choose.

Public service announcement:

Today is Free Scoop Night at Baskin Robbins from 6pm to 10pm.

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What's in a Rose:

We have a tentative new name. The reference will be obvious to Chicago-ans.

No Soul to be Damned:

Tom Paine.com presents an argument that Nike should lose its case in Nike v. Kasky, in which it is arguing that it ought to have the same political speech rights that individuals enjoy. Rather than delve into the depths of whether corporations should have free speech rights de novo I just want to take a few parts of the Tom Paine piece and explain why I think they are problematic. This is the reason that legal briefs are more conducive to constitutional arguments than are op-eds.

But Nike’s going out of its way to try to legally cement its ability to speak deceptively. The trouble is that there is no Constitutional justification for this. Corporations should not enjoy the same rights as humans -- the word "corporation" is entirely absent from the Bill of Rights and Constitution; and for good reason. People should be held in higher esteem than companies.

Another reason for limiting corporate "freedom" is that corporations can and do use their privileges to harm people in the interests of profit. For years, tobacco company officials claimed -- even in testimony before Congress -- that smoking wasn't a serious health risk. As it turned out, they were blatantly lying, but thankfully they’ve gotten hammered with massive class-action suits. If the Court rules for Nike, kiss that accountability goodbye.

Corporations need not be held to perfect accuracy, but they must be held accountable to the high standards of truth we as citizens should expect from corporations.

A Blog by any other name:

I've received many suggestions in response to our name search. These ranged from the alluring if vaguely obscure Crescat Sententia (let opinions increase) to the tongue-tangling Baude's Cavalcade of Whimsy. I also remember the Baude-Borg-Blog, The Society of Oddfellows, the Baude Collective, and The New Chicago School.

If only "Chicago School" weren't already semi-taken. Further thoughts?

That's Nothing:

Sara Butler reports (and presumably decries) the fact reported by an Economist Article that in India (not, as I originally wrote, Indiana), one out of every six (17.5%) girls conceived is aborted.

Well in America, there are approximately1.2 million abortions per year and 4 million births per year. That means that in America, 23%, or nearly one in four girls conceived is aborted.
Of course, in America that goes for boys too. And this doesn't help us answer the question of whether these aborted fetuses are actual girls, or simply girls-to-be.

Other death:

Another note for those in Chicago-- On May 3rd at 1:30 in International House, the Edmund Burke Society will be gathering to discuss "Resolved: Let's Kill all the Lawyers." If you like arguing with highly pretensious conservatives, it's worth going.

Which Originalist?:

These kinds of speeches at the ratification debate (link currently bloggered) are what give me pause about thinking that originalism is a helpful doctrine. My suspicion is that even the Founding Fathers (as a collective, not as individuals) weren't precisely sure what the meaning of some of the clauses was.

I'm not sure that it makes more sense to turn to legislative history for this particular legislature (the constitutional convention) than it does for legislatures in general in questions of statutory interpretation.

Spam and Externalities:

The New York Times takes an unsurprising stand against Spam, an issue which raises intriguing, if not particularly thorny issues of First Amendment jurisprudence. What few anti-spam advocates have considered is a slightly more economical solution.

Given the advent of things like paypal accounts and the like, if not total anonymous ECash, it is possible to effect monetary transfers online, even fairly small ones. What if everybody could configure their email accounts to charge a small fee (say, a penny) to any email from an unknown address? (Each person could set their own fee, based on their own like and dislike for unsolicited mail). A fee on the order of a penny or a nickel or a dime is much too small to deter any one-on-one mailer with anything even vaguely important to say (and on the whole, these penny and nickel transfers would largely cancel out) but enough to strongly deter most spammers who want to send 1,000,000 emails expecting to make 50 dollars each off of 50 respondents.

This voluntary pay-for-access program would allow spammers and email-users to make their own choice about the relative sanctity of their email account and the expected value of the commercial transaction they propose. Just a suggestion.

The Law Giveth and ...

Those of you in Chicago who chose to attend class or something in lieu of listening to Richard Epstein's talk, "All the world's a taking" probably made a mistake.

I intended to take detailed notes, but Professor Epstein speaks too well for my paraphrases to do justice to whom. In a nutshell he argued that the Supreme Court's approach to limiting the takings clause has been all wrong. It has always been hesitant to require constitutional compensation for "regulatory" and other such takings because of its extreme example, that it doesn't think that uniform neutral zoning laws should require a massive scheme of payments.

Epstein argues that this counterexample can be cleaned out, not by disregarding the analytical framework that serves us so well in the easier case (a farmer whose land is taken to build a post office) but by figuring out whether the diffuse taking has actually been compensated by the diffuse benefit of a zoning law. In other words, zoning laws are a taking, and therefore must be neutral in order to escape the constitution without having to pay their way.

There was, of course, much more, but I'll just report a few of the choicest quotes:

"The argument is-- 'Ho, ho, ho! I did not take the house, I blew it up!"

"...trying to draw a sharp line in the sand when in fact the wind and the water are blowing and you have no idea where it is."

"As is often the case, anything that is philosophically indefensible is economically and socially a mistake."

"The last thing you want to do is take strong presumptions and turn them into absolute rules, then face a counter example and lose your entire case."

Amen:

Adding to the "how do I get noticed?" discussion, Dan Drezner adds (to blogger users), "make sure your f#@&ing permalinks are working." Amen.

If you're on a group blog, and you don't have admin privileges, I'm not sure you can republish your archives every time you post. Make sure that whoever is in charge does so. Unless somebody knows a way to make blogger do that automatically.

Crossing Aisles:

(Via How Appealing) Long live Feinstein and Nelson, the only two Democratic Senators to vote for Jeffrey Sutton's nomination.

an exception:

Over-sweetened Dunkin Donuts coffee. Now that's grounds for murder.

But seriously, I think the lines between rationality and irrationality are tenuous and hard to draw; a prophylactic rule against the death penalty is one way to acknowledge it.

Will writes that "I think we're too quick to think of time lost in prison as "reversible." Agreed. This week's NYT Magazine profiles Clyde Charles, imprisoned in Angola Penitentiary for 19 years for a rape-murder he didn't commit. He was finally released on DNA evidence.

The sad reality of prison, of course, is that the more years an inmate spends in the custody of the state, the less capable he tends to be of functioning on the outside. Clyde spent nearly half his life holed up with criminals, observing their peculiar rules and conforming to their tribal ways. When he wasn't busy obeying them, he was obeying guards who told him when to get up and when to go to sleep and when to eat and when to urinate. After 20 years, he was a mental shambles, socially unfit -- the adult equivalent of a surly 12-year-old.

What is it worth, 19 years wrongfully spent in Angola? Is there a figure that can be calculated and paid out in hard cash?

[update: some blogger issues... missing words it's dropping to be added later]

Chicago Sodomy Roundup:

Past and present presidents of the UC Libertarian Society go on the sodomy warpath in the Chicago Maroon. My opinion piece is here, Nick Tarasen's is here, and the unsigned editorial is here.

Somewhere in the darkness two rats scuffled. These water-side rats were the size of rabbits. The natives called them pigs and ate them roasted; the name helped to distinguish them from wharf rats, who were a human breed. -- Graham Greene, The Heart of the Matter, Ch. 6.

After a surprising amount of pondering, given the subject matter, I've decided it's the use of the word 'who' in the third sentance that I like.

Death:

Having produced enough in the way of manifestos, today, I'm not going to produce one on the death penalty. I will, however, offer two thoughts.

1: The argument that the death penalty serves as a deterrent is pretty scanty. If I recall correctly, if you are a young black male, your chances of dying after a year on death row are a little less than your chances of dying in Washington D.C. People on death row don't die that often or that quickly.

2: As a corollary to this, I think we are too ready to blur the line between the death penalty and life imprisonment. In theory, the former is much less reversible than the latter, but given the immense delays inherent in administration of the death penalty, it can often greatly resemble life without parole. It's not clear that there's a categorical different between taking people, locking them in a box for twelve years, and then killing them versus just locking them in the box until they die. While I do think the death penalty shouldn't be used (though it's probably constitutional), I think we're too quick to think of time lost in prison as "reversible." It's not, and we should be darn careful who we lock up.

Kozinski redux:

Here's another great Kozinski dissent, though I'm a little less sure about it as a matter of law, I think I'm convinced. It begins:

The majority hinges its opinion on the proposition that “the right to procreate is fundamentally inconsistent with incarceration,” Maj. Op. at 7584, but does not explain how. Let’s consider the possibilities. Gerber asks for permission to:

1. Ejaculate

2. into a plastic cup, which is then to be

3. mailed or given to his lawyer

4. for delivery to a laboratory

5. that will try to use its contents to artificially inseminate Mrs. Gerber.

I gather that the first step of this process is not fundamentally inconsistent with incarceration and prison guards don’t patrol cell blocks at night looking for inmates committing Onan’s transgression. Similarly, the prison has no penological interest in what prisoners do with their seed once it’s spilt; a specimen cup would seem to be no worse a receptacle, from the prison’s point of view, than any other.

Nor is there anything remotely inconsistent with incarceration in mailing a package, or handing it to your lawyer. Sure, the prison is entitled to make sure it doesn’t contain prison escape plans, but Gerber is not claiming an exemption from routine security checks. That a package contains semen, rather than a book or an ashtray or some other such object, would seem to make no rational difference from the prison’s point of view.

Once the package is outside prison walls, the prison’s legitimate interest in it is greatly diminished. That it is to be delivered to a laboratory, rather than to any other willing recipient, seems to make no difference to prison authorities; certainly they have offered no proof that it does. Nor, I would think, does the prison have a legitimate interest in what the recipient does with the package. Whether it is used to inseminate Mrs.
Gerber, to clone Gerber or as a paperweight has no conceivable effect on the safe and efficient operation of the California prison system.

He goes on to recognize that the situation might well be different if an actual statute authorized the warden's decision, and so on. It's interesting stuff Of course, the 9th circuit en banc court disagreed 6-5, but . . .

IP:

Peter Northup (intermittent blogger) has a nice post (which he plans to add to later) about the balancing test involved in intellectual property, especially in issues of satire, and the very really chilling effect that threat of lawsuit can place on independent-types. He suggests, I think rightly, that the "Fair use" doctrine might be a place to turn for solutions, though the law hasn't done it to a satisfactory degree. I recommend Richard Posner and William Landes's new book on Intellectual Property, which suggests (generally) that copyright ought to be extended to more works but that fair use exemptions ought to be broadened immensely.

Full Disclaimer: I helped work on this book during the past year.

And so it Begins:

Sara Butler, unsurprisingly, complains about the abortion post below, while The Private Intellectual thinks that I've been even-handed, which probably just means that like my hero, Justice Kennedy, I can't say anything without a three-page equivocating preface. Anyway, Sara writes:

Well, actually I don't think there's really much of an argument to be had about whether or not an unborn child is a human life. It's definitely alive and it's definitely human. What else could it be? It's a human fetus, not an unborn zebra or chimpanzee or seahorse.

The death penalty also came up in today's discussion with the Constitutiional Controversies teacher (yes, Will and I and Sara Butler over at Diatoma are all in the same one).

The teacher asked if I were opposed to the death penalty on 14th Amendment grounds. I'm opposed to the death penalty on whatever intellectually honest grounds will support me. I don't question that the death penalty was an accepted form of punishment when the Constitution was written. Ideally, it would be abolished by constitutional amendment. Then we could all just go home.

But that doesn't answer the question of why I oppose the death penalty.

The death penalty is reserved for murder, often in practice the murders that horrify us the most. Therefore, which state gets to try the sniper suspects is decided partially on the basis of who can give them death. I can understand better the man who takes a shotgun, marches up the front steps of the house in which his wife's lover lives, and kills him; or the children who poison their parents so they can get the inheritance now rather than in thirty years; or the politician or private individual who murders to prevent blackmail --- but what sense, what sense at all does it make to start shooting up suburban DC? And even the other examples: I understand the temptation to think that if X were dead, all would be better, but if your reasoning can be clouded to the point that you kill, are you actually reasoning?

Truman Capote asks, "How can a person as sane as this man seems to be commit an act as crazy as the one he was convicted of?" -- In Cold Blood. He puts forth a theory of society in which "each of us is the son of a million fathers,"* morally culpable when any person turns out terribly, terribly wrong. He argues that society failed to raise Dick Hickman and Perry Smith (the killers) properly, failed to intercede to give them a moral sense. He believes both would kill again if they were ever let out of jail, but that they shouldn't be killed for not internalizing the prohibition against murder.

Howard Campbell, an American sentenced to die as a Nazi war criminal (he was actually a double-agent for the US) compares himself to Adolf Eichmann, whom he thinks couldn't tell right from wrong and honestly believed he was just following orders:
My case is different. I always know when I lie, am capable of imagining the cruel consequences of anyboody's believing my lies, know cruelty is wrong. I could no more lie without knowing it than I could unknowingly pass a kidney stone.
"If there is another life after this one, I would like very much, in the next one, to be the sort of person of whom it could truly be said, 'Forgive him--he knows not what he does.'
"This cannot be said of me now." -- Kurt Vonnegut, Mother Night, Ch. 29

But how do I argue death penalty on the basis of literary quotations? And honestly, I'd probably discount these if I didn't think they supported my own moral interpretations condemning it. At that point, where do I differ from Santorum (other than that my morality is right and his is wrong)?

*quote from Robert Penn Warren, All the King's Men

Turing Tests:

Irresistible for AIM junkies: a transcript of my brother's breakup with Smarterchild.

Winds of Change:

The Baude collective swells (and not with Baudes). We've just assimilated another Chicago-blogger, Matt Reading. His own personal life and musings will remain on steadywind, his old blog (which you'll now find blogrolled at left) but his vaguely more political thoughts (and whatever else he feels like) will now be here. I'll leave it to him to introduce himself further. He's a great guy, and fun to read.

Anyway, since the score is now Baudes 2, unBaudes 2, it's probably time to think about a new name. The best suggestion that doesn't use the word "conspiracy" gets a gold star. Email me any suggestions.

Ahh, Abortion:

My Law teacher, who's begun reading this bog, calls my views on abortion "egregious". Given the rather scattered nature of my posts on abortion (and the fact that I'm usually responding to the excesses of Diotima or the excessive After Abortion, my take on abortion is probably pretty hard to discern. Seeing as how my chances of ever being confirmed to the Federal bench were a longshot anyway, I think I may as well make some basic arguments here, both legal and political. (Amanda's post on same is below).

The usual disclaimer, only moreso: none of these thoughts are set in stone, and many might still be "egregious" to the right, the left, or both. Please feel free to tell me why I'm wrong.

Law:

Policy:

Who decides?

Original History:

In response to my too-off-the-cuff claim that "when the revolutionaries cried 'no taxation without representation' I don't think they used that interchangeably with 'no representation without taxation,'" a reader responds:

Actually, I think a number of them might have. Many of the colonies had property qualifications for voting, and the major tax was the property tax.

And there was (is) the argument that if people could vote without being taxed, they would vote themselves benefits from people who were taxed, and that wouldn't be a good idea.

Philosophy and Pragmatism:

I think I've finally figured out why office hours with my Current Controversies in Constitutional Law teacher always fill me with such a mixture of sheer joy and abject terror. Ever since I started thinking seriously about . . . things, one of my greatest fears has been logical inconsistency. This fear has driven me to utilitarian-libertarianism, to logical positivism, to textualism (if not originalism) and now very much looms as a specter over my readings of the constitution. When looking at, say, the eighth amendment, one has to carve out a coherent position about it. Nobody particularly does it. Scalia uses a "mode analysis" and decries proportionality, while Breyer urges "proportionality" without ever explaining what the rule is and also without pointing out that the test is essentially a trumped-up version of Scalia's own mode test. The center-right (which is to say O'Connor and Kennedy, with Rehnquist tagging along out of (perhaps misplaced) respect for stare decisis) urges something else, though it's difficult to figure out precisely what it is. O'Connor's decision in Ewing v. California, for example, is essentially a restatement of the facts followed by a summary of the judgment, and fairly lacking on analysis in between.

So what's a libertarian logician to do? On the one hand, I'm tempted to agree that the most intelligible and principled way to interpret the constitution is in a fairly restrained manner, largely according to the dictates of history and its text. The more broadly one constitutional protections, the less deep one can afford to let them run. Consider the application of the First Amendment to conduct that is neither oral nor written communication, such as the burning of flags or draft cards. Having upheld a general right to act expressively as well as to speak, the court then has to admit that a lot of different values can trump that First Amendment claim. Maybe it would be a better (and more sensical) world where the constitution only applied in a more limited number of cases, but applied with more force when it did apply.

And yet what about sodomy laws? I have to confess, while the originalist in my cringes, that I won't lose any sleep if Bowers v. Hardwick is overturned. Partially this is because I think that it follows as a fairly logical consequence of Romer v Evans (if not Griswold v. Connecticut), but partly I think it is defensible as a matter of first principle. The questions that originalists ought to ask themselves is not what the Founding Fathers did (a problem in and of itself when the Founding Fathers differed, as they often did) but rather what the Founding Fathers would have done given original principles but current facts. That kind of counterfactual can be difficult to disentangle, I admit, but I think it's more permitting of the right answer.

Furthermore, there's the problem that logical and legal consistency at the expense of moral judgment is not "incentive compatible," as economists say. That is, if half the judges behave themselves and half do not, it is the misbehaving judges who are more likely to get their way. And while I'd rather live in a world of consistent jurisprudence than inconsistent, if my jurisprudence is going to be inconsistent, then i'd at least like it to be good. And on the subject of contradictions, there's also the Nozick argument, particularly strong for those who already have life appointments or academic tenure:

Though philosophy is carried on as coercive activity, the penalty philosophers wield is after all, rather weak. If the other person is willing to bear the label of “irrational” or “having the worse arguments,” he can skip away happily maintaining his previous belief. He will be trailed, of course, by the philosopher furiously hurting philosophical imprecations: “what do you mean you’re willing to be irrational? You shouldn’t be irrational because. . .” and although the philosopher is embarrassed by his inability to complete this sentence in a non-circular fashion– he can only produce reasons for accepting reasons– still he is unwilling to let his adversary go.

Quite a Day:

Many many thanks to Daniel Drezner and Jacob Levy for their links today. I feel like we've arrived in the Chicago circuit; we're at 400 visitors today and counting, which is definitely a record for this modest blog. At any rate, if you're new here, welcome. I hope you find the place interesting.

Speaking of all of this, Eugene Volokh posts guidelines about how to attract attention to your blog. A few suggestions to add:

1: Find blogs with more traffic than yours, but not overwhelming amounts, the sorts that can still check their referral logs regularly. Then your links to their posts are more likely to inspire a response.

2: Update daily. If you want to attract a regular readership (and you may not) try to make sure that every day there's something there that most of your readers are interested in seeing (usually original thought rather than just a link to some news somewhere else).

I thought I might mention some of my thoughts on abortion:

1) I'm glad it's legal. I think it should be legal, during any trimester, in cases of rape, incest, or the life of the mother. I think it should be legally available during the first trimester; my conviction wavers more after that.

2) I haven't read yet read Griswold v. Connecticut, Roe v. Wade, Planned Parenthood v. Casey, or any of the other major cases dealing with the constitutionality of abortion. However, I am prepared to wave the flag of stare decisis and cry, don't take it away (especially not during the first trimester)!

3) I do not join Will's analogy comparing fetuses to parasites.

4) I would be much happier if doctors in Title IX healthcare clinics were allowed to discuss abortion with their patients, or were at least allowed to refer their patients elsewhere. I'm fine with the idea of a state chosing to pay the abortion costs for women who can't afford it. I'm glad Planned Parenthood clinics exist.

5) I think it's immoral to use abortion as a primary birth control method. I wish birth control were used widely enough that "life of the mother" was the most common reason for an abortion; were that the case, I'd hopefully see a world in which abortions would become exceedingly rare. I realize that rape, incest, birth control failures, and changes of opinion (ie, deciding that now is not the time to have a child) would still result in abortions.

6) I think abortion is the non-criminal taking of a human life.

Dubious Crusades:

Now, as I've explained a bajillion times before, I'm all in favor of Senate filibusters in judge selection. But I think the latest New York Times editorial condemning Jeffrey Sutton is one of the sillier things they've written in a few weeks. They criticize him for espousing "federalism" (which they claim is a "euphemism" for states' rights), though they concede that it commands a majority of the Supreme Court (a narrow one, they insist) and is therefore the law of the land. They further criticize him for winning cases in front of the Court, arguing that the bill of rights forbids states from being sued without their consent (which it does) and that the "commerce clause" hook in the Violence Against Women Act was too dubious to pass constitutional muster.

These are not far-right ideas like Priscilla Owen's or Robert Bork's. These are the mainstays of new Rehnquist Court jurisprudence, opinions joined by Sandra Day O'Connor. If opinions joined by her, one of the most moderate justices on the court, are too far-right for the New York Times, then I can't imagine what they consider balanced.

The Times criticize Bush and Mr. Sutton for letting ideology get in the way of the law. But the blind and crippled protesters at Mr. Sutton's confirmation hearing were not making a fine point of federal law, they were making a political statement-- they like the Americans with Disabilities Act and they don't want anybody to take it away. But if an ideology-free court means anything (and the increasing hijacking of the term and associated rhetoric suggests it might not) it means that constitutional decisions should not be based on policy or protesting paraplegics.

Calling a Spade a ?:

Amy Lamboley suggests that calling abortion "murder" might actually convince people. I'm not so sure, despite the "evidence" she elliptically references. My own personal guess is that testimonials and horror stories work, that religious arguments (in the right forum) work, and that those weird "pregnant? need help? call us." signs on the El probably work too. Even abortion protestors, the kind who harrass people outside of clinics, they probably work too.

But in the abstract, I'm not so sure. The concept that a fetus is human is new to very few people. Ditto the concept that a fetus is not human. (And the concept that a fetus is semi-human, as Amy posits). I'm really not sure who is swayed by the murder propaganda, but if the pro-life folks think that somebody is, far be it from me to stop them. I just think it sounds pretty silly, about as silly as when the libertarians insist that taxes are theft or the marxists tell you that property is. Then again, I suppose there are definitely impressionable children out there. . .

I didn't mean to say that the participants in this debate were rational, only that the irrationality that infects most of them (us) isn't particularly succeptible to bland moral assertion. At any rate, I'm no expert in rhetoric. I presume that the anti-abortion activists know what they're doing better than I.

Chicagobound:

I don't usually watch football or blog about sports, but Rex Grossman, who was in high school with me (a year ahead of me) has just been named 1st-round draft pick by the Chicago Bears. That's pretty cool.

sad and awful -- more on the (I don't know what to call this) bust of non-drug dealers from Tulia, Texas (the really racist prosecution that's got what looks like 13 innocent people in Texas prison with very long sentences):

Go read Bob Hebert's piece about it in the NYT. He does it justice.

Kansas and Oz:

As ought to be manifestly obvious, we have added color to our names, which ought to brighten the place up a bit, and also help tell our posts apart (just in case you ever confused us). Many profuse thanks to Eugene Volokh, who made this possible.

I watch one Friends episode this entire year, and it happens to be the one Jacob Levy and Daniel Drezner discuss. What upsets Drezner is that "affair-with-coed is the only persistent trope in the fictional depiction of academics." That seems like a fair assessment of the dominant stereotype.

Why, though? ER has had great success with doctor-nurse, doctor-ambulance driver, and doctor-intern, but it's always also maintained good doctor-doctor storylines. I don't see that a relationship between the surgical doctor and ER doctor translates any better or worse into fiction than a relationship between the professor of con law and the professor of feminist philosophy. In fact, college students *like* gossip about relationships between professors--they have a sideline seat to all the action. From the student p.o.v., it's the relationships between profs (or admissions officers) and students that get creepy.

it may be beating a dead horse, but I'd like to say it:

Much has been made of Senator Santorum's notorious remarks. Commentary on it has picked up on his religious beliefs that influence his moral stance, referring to these belies as Roman Catholic, fundatamental Christian, and Christian.

There are many main-line Christian churches in America that do not support Santorum's views. These are the declarations of the denominations' national organizing bodies:

United Methodist Church: actively supports equal rights regardless of sexual orientation.
Evangelical Lutheran Church of America: is in the midst of a study on homosexuality. The ELCA currently ordains celibate homosexuals and do not think the Bible's teachings on homosexuality are clear.
Presbyterians: do not ordain non-celibate ministers or permit civil unions in the church, but find no " legal, social, or moral justification" to criminalize homosexual conduct or to discriminate against homosexuals.
United Church of Christ: ordained its first openly gay minister in 1972 (UCC is the union of the Congregationalist and Reformed Churches).

Furthermore, some Christians have left their denominations in order to found new branches that differ from the parent only by accepting gays. For examples, see the National Gay Pentecostal Alliance and the Rainbow Baptists, both fundamentalist groups. [Controversial social issues have caused large schisms in churches in the past. Slavery split the American Baptists from the Southern Baptists, and also divided the Methodists for many years.]

Although I've covered many Christians and fundamental Christians to show they are not anti-homosexual (pro-, perhaps), I realize I have not even touched upon many churches. The non-denominationalists are the first that jump to mind and I feel I should find some way to include them, but I'm looking for national statements of unified belief. I also haven't mentioned yet the Roman Catholics, Santorum's own denomination. I don't want to touch on doctrine there, so I'll just say that many Catholics would like the Roman Catholic Church to be far more inclusive; Santorum does not speak for them.

2000-2004 Redux:

Matthew Yglesias responds to my post on Republican chances in 2004 (not one of my better posts, at any rate).

He suggests that the major Bush problem will be dealing with a paradox-- is the economy bad because Bush's economic policies are bad, or is it bad because Bush hasn't fought off terrorism well enough. This might be the way the public ends up viewing it, but I'm not convinced. Here are some other possibilities (and I'm not taking a stand on which, if any, is right, but I hope they're all somewhat plausible. As war in Iraq showed, different people can do the same thing for different political reasons).

Possibility 1: Neither of the above. The economy is bad because of terrorism, but it would have been far worse if we'd responded to the crisis badly. Blaming Bush for a terrorized economy is like complaining to the police that although you got your car back, your gas tank is empty.

Possibility 2: Blame Clinton. The economy is bad because it never should have been so good in the first place. The Internet-based euphoria of the Clinton years was bound to crash no matter who was in charge next.

Possibility 3: Blame Enron. The economy is bad because of the evil corporations that made it that way. But since various new reforms are being instituted (like BCRA, and the SEC overhaulf) Bush can claim credit for our partial recovery.

Possibility 4: Blame Congress. The economy is bad because congress won't pass all of Bush's tax cuts. This is risky because there are so many Republicans in Congress.

All of these are sub-classes of the general argument that not everything that happens to the country is the president's fault. I think one has to be naive to assume the 9-11 hijackers wouldn't have attacked if Gore had been president. Economic and military "shocks" happen to countries all the time. Sometime, like during Reagan's term, this results in undeserved popularity. Other times, like during Carter's term, this results in undeserved criticism. The important political issue is whether the president can appear to be responding properly. The mystifying "leadership" polls give the sense that a lot of people think Bush has.

But the paradox isn't too serious. I think most people (rightly) think that he's not so great on domestic policy, but did a pretty good job of responding to external threats to the U.S. and keeping us safe. Anyway, I think the unspoken presidential motto (not nearly as rousing as the Pro-Clintonism in which I happily partook) will be "it could be (a whole lot) worse." This is not to say I think the president should win re-election, nor to say that I don't think his economic policies are both mystifying and disastrous. I'm not sure I can forgive him for steel tariffs.

P.S. And for those new here, my last name is Baude.

Tom Friedman:

This is, as always, worth reading.

I think Will will either appreciate this or hate it:

This week's Style Invitational was the annual contest where they ask you to "mate any two Triple Crown-eligible horses and name the foal". The Post already did its readers the favor of running the long list of eligible names for the parents of the hypothetical foals.

and the winner is -- "Mate J Alfred Prufrock with Wordsworth and name the foal Lonely As A Clod (Emily Lloyd, Milford, Del.)"

for springtime career anxieties:

Last week, the Washington Post published a list of the top 10 reasons why you should and shouldn't work for the federal government.

The interesting work (#2) is what would first tempt me to work for the government, but I also lean towards the government because I see it as standing in between academia and the corporate world (job security replaces tenure, and "public service" is somewhere between "pursuit of pure knowledge" and "being entreprenurial").

Hmm, these lists do seem slanted towards getting more people inside the beltway. Working for a bureaucracy sounds like the worst of it.

(thanks to dclawstudent for pointing these out, and no, there's nothing in the lists' reasons that's specific to legal jobs.)

Catch-22:

After Abortion links to a confidential survey about men whose partners have undergone abortions. My favorite question:

21) To what degree have you forgiven the person, other than yourself, whom you most blame for the abortion?
1-not at all/2/3-in progress/4/5-completely

Oh Dear:

The latest search result somebody used to get here: "extreme nude children".

A few notes to bloggers and blog-readers:

1: Republish your archives whenever you post. It's terribly annoying to link to you otherwise. ("archive" is between "template" and "team" when you're blog-editing)

2: If your internet domain is slightly unusual, then remember, we know how often you visit. And we sometimes wonder.

3: If you know how to make different bloggers names come up different colors like the volokh gang, please email me.

4: Never hesitate to email us (or at least me) interesting links.

5: Never tell friends "oh, go read about it in my blog."

6: Thanks for reading us; please keep visiting.

Election Redux?:

Matthew Yglesias thinks that the Democrat's performance in the next election will be well predicted by the results of last election. I'm unconvinced. Bush's momentum is. . . momentous. It isn't just a case of incumbency, though that certainly helps, but rather of what has changed in the past four years.

The president has presided over the greatest terrorist attack on American soil, and one of the cleanest, least deadly wars of recent history. It's hard to make the case that we're clearly better off than we were three years ago, but on the other hand, things could certainly have gone a whole lot worse. I'm sort of agnostic about whether Bush handled our problems better than Gore would have. William Safire had an interesting column about Gore's strong leadership abilities sometime during the 2004 campaign.

But at any rate, what should be clear is that there's no particular reason that this vote should be like the last vote was; Bush was running originally as a relatively undistinguished governor with a focus on "compassionate" if scanty domestic programs and an unclear policy about education. Now he'll be running as a victorious commander-in-chief and leader of the free world, with some uncomfortable moments of far rightness.

Personally, my vote will be determined (mostly) by the upcoming judiciary battler for any Supreme Court seats vacated soon. If Bush's nominee is really good, I'll vote for him. If the opposing candidates stance on him or her is particularly incisive, I'll vote for him. If both sides make me sad, it's back to the libertarian ticket (ceteris paribus).

UPDATE: Responses to Matthew Yglesias are here.

Clever Clayton Cramer?:

Ridiculing the "Old enough to fight? Old enough to vote" bumper stickers (from back in the day), Clayton Cramer writes:

In the context of the times, it meant that if you could be drafted at 18, then you should be able to vote. Did that mean that women, who weren't drafted, shouldn't be allowed to vote? Did it mean that those beyond draft age shouldn't be allowed to vote? You see where cleverness gets you.

Compare and Contrast:

John Kerry:

I said to people long ago and I held to this during my Senate campaign, I came to politics based on my own initiative and my own effort to raise money and that's the way I want to finish my life in politics. Teresa's money is Teresa's money and I've declaratively stated that. (3/24/03)

I'm going to, as I've said all along, I'm going to reserve, I don't have any special plans right now. (4/23/03)