Racially homogenous universities:

Actually, racial homogeneity has proved a bit of a legal problem for some historically black colleges and universities. Alcorn State, in Mississippi, has diversified by attracting (white) Russian students, thanks partially to the recruitment efforts of a tennis coach and a lawsuit that the state hadn't been taking fair care of Mississippi's three HBCUS -- Alcorn State, Jackson State, and Mississippi Valley State Univ.

The result is a good story, avaliable here, as reported by the New York Times in March. (life before google... what was that like?)

More affirmative action:

Mustafa Hirji writes, "A native Indian or an Asian isn't disadvantaged by race when applying to universities or jobs. . . . If all races are equal, than the impediment isn't race, and race shouldn't be a basis for affirmative action.
" (see his point 3 of his full message availabe here below, along with Will's comments on it).

I think the last sentence should be, If all races are treated equally, then the impediment isn't race.... And as for whether the latter's the case, do you remember this recent study? (apologies...html google cashed version)

To test whether employers discriminate against black job applicants, Marianne Bertrand of the University of Chicago and Sendhil Mullainathan of M.I.T. conducted an unusual experiment. They selected 1,300 help-wanted ads from newspapers in Boston and Chicago and submitted multiple résumés from phantom job seekers. The researchers randomly assigned the first names on the résumés, choosing from one set that is particularly common among blacks and from another that is common among whites.

Apart from their names, applicants had the same experience, education and skills, so employers had no reason to distinguish among them. The results are disturbing. Applicants with white-sounding names were 50 percent more likely to be called for interviews than were those with black-sounding names. Interviews were requested for 10.1 percent of applicants with white-sounding names and only 6.7 percent of those with black-sounding names.

Their most alarming finding is that the likelihood of being called for an interview rises sharply with an applicant's credentials - - like experience and honors - - for those with white-sounding names, but much less for those with black-sounding names. A grave concern is that this phenomenon may be damping the incentives for blacks to acquire job skills, producing a self-fulfilling prophecy that perpetuates prejudice and misallocates resources.

So, the charitable theory of affirmative action offers that it corrects for the biases current and operating in the system -- the one that causes employers to pull J. Truman Mayflower III's resume out of the stack. The skeptical realist replies that affirmative action perpetuates the biased system, perhaps even worsening rather than correcting the problem. Studies like this make it hard to say that one's race can't be a disadvantage -- not through any fault of the person's own, but because of the reactions which others have to it.

Well, I'm off too go do something semi-productive for a while, but I leave you with this opinion from the 5th Circuit and a few excerpts. (Link via Sua Sponte)

Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact — complete with hats, handshakes and cryptic words — to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions.

With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor's edge sense of exhilaration, the Court begins...

Defendant submitted a Reply brief, on June 11, 2001, after the Court had already drafted, but not finalized, this Order. In a regretful effort to be thorough, the Court reviewed this submission....Plaintiff's citation, however, points to a nonexistent Volume "1886" of the Federal Reporter Third Edition and neglects to provide a pinpoint citation for what, after being located, turned out to be a forty-page decision. Ultimately, to the Court's dismay after reviewing the opinion, it stands simply for the bombshell proposition that torts committed on navigable waters (in this case an alleged defamation committed by the controversial G. Gordon Liddy aboard a cruise ship at sea) require the application of general maritime rather than state tort law. See Wells v. Liddy, 186 F.3d 505, 524 (4th Cir. 1999) (What the ..)?!...

The Court cannot even begin to comprehend why this case was selected for reference. It is almost as if Plaintiff's counsel chose the opinion by throwing long range darts at the Federal Reporter (remarkably enough hitting a nonexistent volume!). And though the Court often gives great heed to dicta from courts as far flung as those of Manitoba, it finds this case unpersuasive...

Despite the continued shortcomings of Plaintiff's supplemental submission, the Court commends Plaintiff for his vastly improved choice of crayon — Brick Red is much easier on the eyes than Goldenrod, and stands out much better amidst the mustard splotched about Plaintiff's briefing. But at the end of the day, even if you put a calico dress on it and call it Florence, a pig is still a pig...

Now, alas, the Court must return to grownup land. As vaguely alluded to by the parties, the issue in this case turns upon which law — state or maritime — applies to each of Plaintiff's potential claims versus Defendant Phillips. And despite Plaintiff's and Defendant's joint, heroic efforts to obscure it, the answer to this question is readily ascertained...

After this remarkably long walk on a short legal pier, having received no useful guidance whatever from either party, the Court has endeavored, primarily based upon its affection for both counsel, but also out of its own sense of morbid curiosity, to resolve what it perceived to be the legal issue presented. Despite the waste of perfectly good crayon seen in both parties' briefing (and the inexplicable odor of wet dog emanating from such) the Court believes it has satisfactorily resolved this matter. Defendant's Motion for Summary Judgment is GRANTED.

At this juncture, Plaintiff retains, albeit seemingly to his befuddlement and/or consternation, a maritime law cause of action versus his alleged Jones Act employer, Defendant Unity Marine Corporation, Inc. However, it is well known around these parts that Unity Marine's lawyer is equally likable and has been writing crisply in ink since the second grade. Some old-timers even spin yarns of an ability to type. The Court cannot speak to the veracity of such loose talk, but out of caution, the Court suggests that Plaintiff's lovable counsel had best upgrade to a nice shiny No. 2 pencil or at least sharpen what's left of the stubs of his crayons for what remains of this heart-stopping, spine-tingling action.

In either case, the Court cautions Plaintiff's counsel not to run with a sharpened writing utensil in hand — he could put his eye out.

IT IS SO ORDERED.

The New York Times reports on a fellow in Washington state named William Sheehan, who maintains a website where he posts the addresses, social security numbers, and other similar data, of police officers. He doesn't much like police officers. The Washington legislature tried to stop him, but a federal judge struck down their statute as unconstitutional. This should remind readers, perhaps, of the "Nuremberg Files" case where anti-abortion activists listed personal information for abortion doctors in an effort to encourage violence against them, or perhaps of Cox v. Cohn which dealt with whether radio announcers could publicly list the names of rape victims.

My own view is that there shouldn't be some sort of middle ground information that is "public but not too public." If you can tell your best friend over the phone, you ought to be able to post it on your blog. I'm not sure my view is entirely supported by First Amendment jurisprudence, but . . .

Sheehan himself notes that he's a little uneasy about posting the social security numbers, since he thinks the state shouldn't be revealing those in the first place, but has decided to include them anyway for verification purposes. I think that people ought to have a decent amount of a right not to disclose certain things in the first place (unlisted numbers and addresses, etc.) but that once they do disclose them, they shouldn't get any legal right to stop other people from talking about them.

Incidentally, I don't think the Times article gives the address for his site. It's here.

Incidentally, for the oenophiles among you, here's a Federal Trade Commission report on the benefits of letting wineries ship their wine directly to their customers through the mail (many states don't). It's far more cogent and carefully-reasoned than my first-year paper on the subject, but not as funny.

So here's a boring article on tort reform, and here's an interesting sentence:

The Democratic alternative to the Republican measure, which would offer tax relief to doctors, strip the insurance industry of its longstanding exemption to federal antitrust law and create a commission to study the cause of high malpractice premiums, draws on some ideas Mr. Edwards laid out in May in an opinion article published in The Washington Post. . .

So I'm looking for some good program or website or whatnot (preferably free) that will keep track of a bunch of blogs for me, and tell me when they're updated. Not all of the blogs I want to keep track of have RSS feeds, and a lot are only updated every few days. I'm looking for some way that I can keep track of when those blogs have something new without having to click through 50-odd links several times a day. Anybody who knows of such a system is invited to email me.

Incidentally, as I'm sure you can see, every post now has an email link to the author, just click on the author's name.

Mustafa Hirji writes in with four comments on affirmative action and racial diversity.

1. You argue that if racial diversity is the goal, then Universities should be outright and open in their use of racial preference. I have to agree completely. Affirmative action is, IMHO, racism with "good" intentions, where "good" is defined by society (I'm sure the KKK would also argue they have "good" intentions). If we're going to have state-sanctioned racism, let's be open about it so we can keep an eye on it, not hide it. Hiding something like racial preferences behind a mask (social background, economic background, geographic origin, etc.) is akin to using euphemisms--it is trying to hide a barbaric practice through indirect reference. Soon the practice will be seen as good because no one will look deep into what is actually being done.

2. Let's be the devil's advocate. If a university is allowed to implement racial diversity rules, is a university now also allowed to implement racial homogeneity rules? A university could argue that racial homogeneity would further debate on issues by creating a different dynamic than racially diverse classes. They currently argue that racial diversity makes students think differently about issues. They currently argue that someone growing up in an african-american neighbourhood will see things differently than someone from an asian neighbourhood, than someone from a caucasian neighbourhood. Sure a racially homogeneous class will approach issues differently and bring a different perspective to society upon graduation.

3. I've argued many times that the whole notion of affirmative action to promote equality is wrong. While SCOTUS through the U of Michigan cases has asserted that diversity should be the justification for affirmative action in the US, in Canada (where I'm from if my email address wasn't a give away) equality reigns as the justification. A native Indian or an Asian isn't disadvantaged by race when applying to universities or jobs. It is accepted that no race is genetically inferior to another in any significant way (there are a few advocates of the opposite including a professor at University of Western Ontario, but these are few in number and their evidence is weak). If all races are equal, than the impediment isn't race, and race shouldn't be a basis for affirmative action.

I would argue that social problems lead to impediments, however. Alchoholic parents, poor parents, abusive parents, etc. Minorities who fail to advance to university overwhelmingly come from poor and abusive families. Likewise, Caucasians suffering the same problems tend, also, not to get into universities. And unlike race, these social problems have a logical link to poor academic performance--these children go to poor schools, don't have parents two instill the value of education, don't have parents who'll nurture their children's academic skills, etc. Using poverty as a basis for affirmative action would make far more sense to me than the current practice of using race. Inequality is a result of poverty, not the possession of a genetic makeup that gives you a few insignificant physical characteristics.

4. Affirmative action is a bit silly because it doesn't attack the underlying problem. We shouldn't try to "compensate" for a problem 20 years into it by hurting someone who's done nothing wrong. Rather, we should attack the root of the problem. If you think the problem is the existence of racists, we should root out these people. If, as I think, the problem is social environment of upbringing, we should try to eliminate poverty. Trying to put make-up on the effect of the problem 20 years later isn't going to solve the problem.

(via Waddling Thunder) Proving that they do have some sense of decency, Harvard just withdrew its offer for acceptance from Blair Hornstine, the girl who successfully sued her school to force them to declare her the only valedictorian.

We have a new template. Please feel free (in fact, feel encouraged) to email me comments on the change.

47 Years and Possibly Ending:

The Baton Rouge Advocate reports that

The members of the local NAACP voted Thursday by a narrow margin to allow their attorneys to sign a settlement of the 47-year-old East Baton Rouge Parish school desegregation case once the final language has been worked out.

The NAACP isn't really saying what is in the agreement they signed (citing a gag order that may or may not be as stringent as their silence), there are questions of whether all those who voted as NAACP members actually are members, but never mind, the end to litigation is going ahead.

If everyone signs and if US District Court Judge John Brady approves it, then

The proposed settlement. . . would end the case, but commit the school system to many of the current desegregation tools for four more years.

It would allow more students to attend their neighborhood schools, create as many as six new schoolwide or "dedicated" magnet schools, enhance three other magnet programs, and close several others.

It also would let more minority students transfer to magnet programs and other schools.

A key part of the proposed settlement for the local NAACP is that it preserves extra resources and teachers for predominantly black schools and preserves extended day, extended year and prekindergarten programs at those same schools.

Now if the school system can only become good enough that it no longer qualifies as a Teach for America site...

Alternatives to What?:

Amanda Butler asks whether it's any better to use income or "top X% in your high school class" to proxy for race in college admissions.

Look, it's not any better to just use X% plans or income-action if you're doing it only to proxy for race in the first place. Similarly, it's not really any better to give bonuses to students interested in critical race studies (predominantly minorities) or Tibetan Sand Art, or whatever. These aren't race-neutral alternatives to racial diversity-- they're non-facial discrimination insted of facial discrimination.

The real question, I think, is whether universities should be allowed to pursue racial diversity in the first place. I think not. After all, universities (usually) claim that the reason they want racial diversity is because it brings about intellectual diversity. Well, that's great, but then why keep track of the racial numbers at all? Programs like economic-affirmative-action are great because they both remedy past/current discrimination and bring about intellectual diversity, all without playing the race card. Indeed, economic-affirmative-action would be a good idea no matter what race happens to be predominantly poor.

The trouble arises when a school values racial diversity for its own sake-- either because a critical mass of students allows students to contribute without feeling like spokespersons for their race, or because minority students bring viewpoints and experiences of "lived race" that majority students simply can't. If the goal is racial diversity, then I don't see anything wrong with employing racial discrimintion to get there, and I don't think it makes it any better or worse if that discrimination is done blatantly, through "points systems" or "holistic review" or if its done by proxy, through X% plans. If the goal is some other kind of diversity, or a desire to give a leg up to the underprivileged, or whatever, then there's no need to proxy for race at all-- just ifnore it.

In my view we should just take the "what race are you?" box off of all of the forms at universities. Schools should aim for diverse classes, smart classes, socially responsible classes, whatever. But the same experiences ought to be valued equally coming from two applicants of the same race.

Incidentally, I'll have a piece on this coming out shortly in the Chicago Maroon.

UPDATE: As it happens I came across this passage in a 12/18/00 New Yorker article this afternoon, providing the "implicit" justification for Michigan's program. It's probably longer on rhetoric than on logic, but a good point, and a way to explain why so many academics have more complicated feelings about Affirmative Action than they do about other issues.

(Universities) believe that their main purposes are the traditional ones: pursuing scholarship and learning, and training students to go forth and improve the world. Affirmative action is easy to justify if you understand universities the way they undrstand themselves. I a society bedevilled by racial tension, they have a duty to become sites of interracial understanding, and to insure future peace and progress by making sure there will be black lawyers and judges and doctors and teachers and executives. They are not obliged to populate themselves according to a bling objective standard, in honor of an individual right to admission. These aren't arguments you can explicitly make in defending a legal challenge to the Bakke decision, but they implicitly underlie Michigan's feeling that ending affirmative action would be . . . tragic.

So thanks the generosity of my employers, I attended Solicitor General Ted Olson's Federalist Society luncheon this afternoon. Most of what he said wasn't particularly new, though much of it was quite funny. Sadly, I did not take notes, so I can't reproduce more than a quote or two, although Sara Butler did. If you pester her enough, I'm sure she'll either post them or give them to me.

They began by telling us that this was the largest audience the luncheon had ever received. "Though the fire code limits us our occupancy to 400 people, we have an opinion from Sandra Day O'Connor declaring that for the next two hours, 400 means 500. . . After two hours, she hopes that it will no longer be necessary and 400 will mean 400 again."

The tomfoolery award went to Maureen Dowd, and attempting to quote from her columns on Justice Thomas and Justice Scalia nearly had Olson's voice breaking up. He pointed out how strange it was for O'Connor to award Constitutional bonus points to "holistic, individualized, review" when in other strict scrutiny contexts (like parade permits) the system must be objective (which is to say rigid) in order tobe constitutional. And there were the requisite digs at the VMI case.

He only let a few hints as to the forthcoming BCRA brief come out, essentially insisting that the SG's office would be enthusiastically defending the constitutionality of the law...

NEAR-IMMEDIATE-UPDATE: My illustrious co-workers remind me that it was not Solicitor General Olson who gave the quote up above, but rather the gentleman introducing him, whose name escaped me entirely. You can see what little use I am without my notebook.

UPDATE REDUX: A summer associate at Gibson, Dunn etc. emails to tell me that the gentleman I quote above was Doug Cox, partner at Gibson, Dunn & Crutcher and President of the DC Chapter of the Federalist Society. Thanks.

UPDATE THE THIRD: Since I just noticed that How Appealling has linked to this post (that was hours ago!--ed. Yeah, well, I was working on my real job.) I feel some obligation to try to add more substance to it. So what follows are a few more random observations and memories--

General Olson speculated on whether the right to "transcendent" liberty would extend to riding a motorcycle without a helmet, smoking cigarettes, or driving SUVs. (He suspected that the answer was no, but couldn't come up with a good reason why not). He also hypothesized that the reason that members of the court have been writing so many opinions lately (more concurrences and dissents than usual) is because they have so much more time, since they're handling a lighter caseload (only 74 cases actually decided on the merits this term).

He rattled off many more statistics (Mr. Cox pointed out that Olson's record for the Bush administration is now 14-2, plus 2-0 on the Bush Election cases before he became SG), such as the fact that the 9th Circuit's reversal rate improved to 14 out of 19, although it did have 4 summary reversals without argument (including three on one fateful November day).

He also mentioned that Justice Breyer read portions of his dissent in Ewing v. California, the 3-strikes-8th-Amendment case from the bench. This intrigues me. In fact, the practice of judges reading their dissents from the bench intrigues me. I recall hearing that the dissent in Bowers v. Hardwick was read from the bench, we know Scalia's dissent in Lawrence v. Texas was, and I also remember hearing that somebody, perhaps Souter?, read his dissent in Zelman v. Simmons-Harris, the school voucher case. (Incidentally, my understanding is that when a judge "reads" his dissent he doesn't read the whole thing.) Does anybody know of a good resource that records which Justices read their dissents from the bench when? Ideally this would be a list of the bench-dissents going back to Justice Breyer's appointment, or even farther... Please let me know.

Also, while discussing the number of concurrences and dissents in various opinions, Olson mentioned the messy nest of opinions in Chavez v. Martinez, in which Justice Thomas announced the opinion of the court. Apparently after reading through the tangle from the bench, Justice Thomas commented, "As you can see, I'm a consensus builder."

Hmm. One other thing-- Olson made an offhand comment that made it sound to me as if he had been present at all or almost all of the oral arguments this year. Does anybody know how often the Solicitor General himself attends arguments or court announcements?
ONE LAST UPDATE:

Various anonymous readers report that it was Breyer who read his Zelman dissent, that Olson indeed attended every oral argument where the government had a stake and then some (have I mentioned I want that job?) partially to check on how his guys were doing, and was complimented by the Justices on his attendance.

Affirmative action and race-neutral alternatives:

So, you're a university, you want a racially diverse class, you want high standards and smart students, you don't want to (and you can't) assign 20 admissions points on the basis of race, you don't even want to add race in as a non-numerical fuzzy bonus point (ala Michigan law). In fact, you think the using race in college admissions is counter-productive to creating a universally well-educated, color blind society in the long run. Still, you don't want to see the same color faces when you look at your class. So what do you do?

Texas's merit-based program which automatically admits the top 10% of each high school's graduating class is (sometimes) praised by some for resulting in a racially-mixed group of students receiving these awards and is (routinely) criticized for de facto relying on segregated high schools to achieve this result.

Another alternative is to give points, numerical or fuzzy, to students who come from socio-economomic deficiencies. True, Ruby Cosby, with a doctor dad and lawyer mom, won't get any of these points, but she's a bright girl, she can sink or swim on her own. You can say that the students who come from these poor backgrounds are the ones who, thanks to their circumstances, are most in need of a helping hand. You also know, by running the numbers on the national poverty stats, that these socio-economic points are going to increase your university's racial diversity, which was your original goal.

Is there an ethical difference in the two programs? -- one relies on segregated secondary school systems, one relies on the segregation of poverty -- how can the difference be teased out?

Segregation in our school systems is, in some dreams of a better future, something that can and will be erased; wealth and income inequalities are an ever-present element of a capitalist society. But wasn't part of the hope behind school desegregation that it would lead to poverty desegregation (fewer racial striations in the economic stratification)? How could the second program be defended by someone who wanted racial diversity? How is the second program not just a shift to another statistic to be used as a rough racial identifier?

Ranking Games:

Acknowledging the awesome power that it wields, US News and World Report dropped the Yield Rate from its university rankings because it feared that Universities were adopting binding early admission plans in order to secure high yield rates. I'm not actually sure how much this is the case, since universities have another strong incentive to maintain such binding plans, which is the amount of leverage the university gains in financial aid negotiations.

In any case, that still leaves both graduation rate and admissions rate as factors of major importance in a University's ranking. A low admissions rate and a high graduation rate are presumably good-- but why is this so? It seems to me this choice of ranking is based on adherence to a particular model-- the model of the selective elite institution that makes it very difficult to get through the door, but easy to pass and excel once you're there. The consequence is that having (for example) a Harvard degree (96% graduation rate) tells you very little about how much the person actually learns in college but a whole lot about how much they learned in high school. Well, okay.

But there's another way-- some universities tend toward a different model. They accept a lot more students, including many whose high school statistics contain some notable blemish, but then flunk a lot more of them too. Essentially they acknowledge they widen their initial margin of error but then work harder to cull the field. On the downside, the university probably becomes a little more competitive, since performance in college suddenly matters, but it also means that while being a student at Berkeley might not signal quite as impressive an achievement, being a graduate of Berkeley (68% graduation rate) might be more impressive than being a graduate of Harvard.

Now, I'm not quite ready to argue which of these models is a better one (though the fact that I attend the University of Chicago will serve as a clue for the astute reader), but I do think that U.S. News shouldn't be taking sides in this philosophical split, or should at least acknowledge that its ratings do take sides.

A better solution would be for U.S. News to change its use of both admissions rate and graduation rate and combine them into one rate-- the % admitted and graduated rate.

Thus, if school H (say) had an admissions rate of 10% and a graduation rate of 100% while school C (say) had an admissions rate of 20% and a graduation rate of 75% and school O had an admissions rate of 50% and a graduation rate of 50%, their final percentages would be 10%, 15% and 25%. In this case, the ordering would be the same, although the disparity not nearly as great.

In other words, while it makes sense to consider low admissions rates the mark of a good institution, I'm not sure it makes sense to count high graduation rates too. The current rankings systems encourage universities to admit as few applicants as possible but to treasure them dearly once they are there-- this means that applicants secure their college degree with only three years of a high school record.

Now yes, you may object, many community colleges will suddenly do very well under this system, since their graduation rates are abysmally low. But it's doubtful most of those CC's will fare well under US News's other criteria.

Alternatively, US News should drop either admissions rate or graduation rate. A high graduation rate is usually taken as a sign that admitted students "enjoy" the school. A low admissions rate is usually taken as a sign that the school is selective and therefore prestigious. But conflating these two ratings together encourages a highly questionable philosophy of education.

Legitimacy:

A sub-question to Chris's legitimacy post earlier-- Eugene Volokh blogs on this amazingly egregious decision of the Nevada Supreme Court. The Nevada Constitution requires a two-thirds vote in order to raise taxes. This has caused a budget deadlock. The N. Supreme Court ruled that the state's constitutional obligation to provide schools overrides the state's constitutional obligation to do it by two-thirds vote. One can merely shudder to think of the various places this logic could take us.
Consider a doomsday scenario where the Supreme Court holds that the President's constitutional obligation to appoint federal judges to the courts overrode his constitutional obligation to get the advice and consent of the Senate. (That's basically the equivalent of what's happened here). But I'm not going to rail against the decision here. I'll leave that as an exercise for the reader.

But what now? We all made fun of Gephardt for claiming he'd override egregious Court decisions with executive orders, but what would the public reaction be if everybody just decided to ignore the N. S. Court on this one? Would the police come and arrest legislators who insisted on the 2/3 vote that the Constitution requires? As Volokh says, the people could amend the Constitution again, but what if only a small majority has the energy to, or what if they can't do it in time?

The second question-- how far would we permit the Supreme Court to go before people stopped listening to it anymore? The past hundred years has shown that it can divorce itself from text and history so long as it is tracking social change, and Roe v. Wade and Bush v. Gore show that the court can even take sides in evenly split debates without a particularly convincing rationale. So what (in peacetime) would the Court have to do to make people just ignore it?

What if the court declared child pornography to be protected speech? What if it declared that the First Amendment only applied to prior restraints? What if it found a substantitve due process right to private drug abuse? What if it declared prison incarceration to be cruel and unusual punishment? What if it suspended the Senate's advice and consent requirement for appointments?

Summer Blogging:

Diotima briefly emerges from the deep. Will they drop back into hibernation for another two weeks? Why do I feel like I'm watching a groundhog's hole?

Bodies:

Incidentally, how far would a right to bodily identity carry? Would it include the right to put alcohol into that body, even when one was carrying a child (under an abortion right wouldn't it almost have to)? Would it include the right to put heroin into that body? To kill oneself? Or to deliberately acquire a contagious disease (c.f., for example the rumor/contraversy about people intentionally getting HIV)?

As a political question (forget the Constitutional question for a sec; it's been done to death) I have no complaint about a right to bodily identity, it seems to include a whole lot of things I believe in. But I'm sort of astonished to see other people supporting it as well. Is this what they intend for it to entail?

Near as I can tell a principle of bodily identity would be a slightly weakened version of JS Mill's rule of self-regarding behavior. Again, I think such a principle would be a perfectly nice one, but I'm sort of confused, firstly about its genesis from a rule of "due process" and secondly by the fact that non-libertarians have been espousing them.

Balasubramani:

So in a single post, Balasubramani manages to defend the Burberry skateboard and Comments, promises a post on the second amendment, and pokes fun at my claims about license plates.

[Incidentally, I found my earlier posts on license plates in Virginia. Click here or here.]

Balasubramani points out that vanity plates might well be individual speech. Indeed, I think the case might come out differently if what were at issue were a government rule that forbade certain viewpoints on vanity license plates. Should the law draw a fine distinction between the two? My tentative answer is yes, but this might just expose my fundamental discomfort with the "designated public forum" doctrine. It's never been clear to me how you can tell when the government has created a forum and when it hasn't-- it seems like begging the question to some degree. The whole reason there's a first amendment claim here at all is that the government hasn't opened the forum widely enough.

Incidentally, a friend writes in to point out how silly it is to get worked up about this. He suggests that pro-choice people buy themselves a bumper sticker and donate $25 to Planned Parenthood. But of course they're fighting for the principle of the thing. I would like to suggest that it's good for courts to deal with "trivial" cases like this one. Since many judges seem tempted to contravene constitutional rules for their own personal preferences, I think these kinds of cases serve as good chances to deal with the rules almost abstractly. When judges deal with something trivial like license plates, there's less of an urge to pragmatically craft a rule to get at a certain result. Judges may not always hold to these rules when big cases come up, but some of them might, and the others are at least put under some pressure to explain why they're contravening the rule.

Death:

AJ Ayer, again, this time on death:

...if one comes to consider it, why should it worry me more, if at all, that I shall not be alive in the year 2050 than that I was not alive in the year 1850? The way things are going indeed, the latter, at least for Englishment of comfortable circumstances, might well prove the better time to have lived.

Calling New Bloggers:

No, not us. The Chicago Report is looking for some additional contributors to the site. I'm not too familiar with the site, but those who are looking for an inlet into blogging without having to start a blog of their own might want to look into it. Chicago residence is preferred but not required.

Tyler Cowen asks why people are more willing to steal music than food and DeCroy responds with the answer I was about to give. When you steal somebody's food, they don't have any more of it. When you steal their music, they still do. Thus, the costs of stealing music are lower and less direct and you don't give them as much of an incentive to come take it back. When you take somebody's food, they have something to gain by getting it back from you (especially if they want to punish you anyway). When you take their music, they have no incentive to try to download it back from you, and even if they did, you probably wouldn't mind.

This intuition seems fairly widespread-- it explains why people are more willing to steal from those who can "afford to lose it," and why people pluck flowers from flowerbeds when they wouldn't think of swiping them out of a vase. It also helps to explain why people download music but wouldn't dream of shoplifting CDs (my shoplifting friend tells me this isn't hard to do). The New York Time's "Ethicist" even advocates switching to better baseball seats at a ballgame, even when the ballpark explicitly forbids it.

Incidentally, I don't mean to say there's nothing morally wrong with copyright infringement. But I do think that it's better if people steal music than if they steal the whole cd. Why wouldn't it be?

The liberty to define one's self:

As Prof. Cass Sunstein pointed out in a recent brown-bag lunch at the law school, Lawrence v. TX (so much more than just the sodomy case) is about a general right to define one's own identity, and sexuality is one of the key ways in which we define ourselves. Other key ways -- religion, race/ethnicity -- are protected explicitly by the 1st and 14th Amendments (although I wonder how far the protection of the latter stretches under a race-blind interpretation).

One source of identity not discussed was bodily integrity, or wholeness. For instance, and perhaps it's just the convention of the form, but note that many personal ads are fronted with a description of appearance -- white, female, brunette, hazel eyes, 5'5".... It's not superficial to say that our bodies are a source of our identities, even yielding those famed Napoleonic complexes. This idea of bodily identity is present in a recent Slate article, Costing an Arm and a Leg, about people who identify themselves strongly enough with amputees that they seek amputations themselves, and in a spring Wilson Quartely piece, "What's Natural", which seeks a logical principle behind determinations of what medical procedures insurers should be required to cover.

Bodily identity lurks behind the some of the most contentious topics in the medical necessity debates: personal appearance (ie, attractiveness), the coverage of expenses for "abortion, breast reconstruction after a mastectomy, and treatment with Viagra", the non-coverage of "contraception for fertile couples, in vitro fertilization for infertile couples, and wigs for alopecia patients".

What’s notable about so many of these battles waged on the borders of medical necessity is that they have to do with matters of sexual attractiveness or ability. Why is that? Perhaps it’s because, as Sigmund Freud famously observed, we’re creatures who work and love. What’s medically necessary for work is now taken care of by workers’ compensation and workplace disability laws (which have generated their own prodigious debates). Now that the workplace has been attended to, love has become the frontier where the fiercest contention occurs over the meanings of medical and necessity. (Stark, WQ)

Even if a right to bodily integrity could be found within the scope of Justice Kennedy's expansive opinion, the Constitution still doesn't mandate that insurers pay for these debated procedures (the right to have a third party pay to create or restore one to a bodily norm! come now, surely substantive due process doesn't stretch so far). However, such a finding might prompt state legislature to mandate that insures cover procedures seen as part of bodily integrity or as restoring someone to a societal or personal norm. Stark gives the examples of two cases where the insurance agency tried to avoid covering costs by calling the conditions "cosmetic" -- a boy who sought reconstructive surgery after a skiing accident left scarred his face, and a girl who sought removal of a large port-wine stain covering much of her torso. Perhaps the first or both would be covered under a 'bodily integrity-sensitive' (for wont of a better term) legislation. It seems likely, with the advances in medical technology and possible shift to a more nationalized health care, that this will become future grounds on the sexual/personal liberty battle (and more interesting, too, than whether there's liberty to marry a cousin).

Nate Oman discusses legitimacy, and particularly Coke's theory of history providing legitimacy over at A Good Oman:

This raises an interesting question: take the US (or Canadian, if you prefer) Constitution. It came into effect two centuries ago, without what we would now consider to be fundamental democratic approval (i.e. referendum), but instead by government action. It was not the people themselves who brought the fundamental organic documents into being and ratified them, but instead their representatives.

The claim to democratic legitimacy is hurt even further by the fact that no one still living had the choice to submit to this regime: citizens have never had the opportunity to state their approval (or disapproval). Instead, the legitimacy of the presently-existing political schema is only rarely questioned.

If democratic legitimacy (as expressed by an informed decision of the population) is required in order for political institutions to be legitimate, then the existing political structure in much of the world is, by definition, illegitimate.

What conditions are necessary for an institution to have legitimacy --- the general non-dissent of the population; a formal act of acceptance by the population; mere history?

Moving up in the World:

Hurrah! Howard Bashman has moved up us higher in his blogroll. Now we are an "especially appealling blog."

Comments on Romance:

My friend Mustafa Hirji comments in email, on non-selection (among other things):

Logical Positivism:

Here's A.J. Ayer, on the existence of supernatural beings (from The Meaning of Life, Weidenfield & Nicholson Ltd.):

Suppose I say "There's a 'Drogulus' over there," and you say, "What?" and I say "Drogulus" and you say "What's a drogulus?" Well, I say, "I can't describe what a drogulus is, because it's not the sort of thing you can see or touch, it has no physical effects of any kind, but it's a disembodied being." And you say, "Well how am I to tell if it's there or not?" and I say "There's no way of telling. Everything's just the same is it's there or it's not there. But the fact is it's there. There's a drogulus there standing just behind you, spiritually behind you." Does that make sense?

Talking About Abortion:

The Senate has just voted in an amendment to a foreign aid bill that would lift the "global gag rule". The global gag rule is a rule that those places receiving our health care funds can't also engage in abortion provision or even counseling. Jacob Levy (and here) has discussed things like this before, and I have nothing to say other than "yay." (And to note that Bush threatens to veto the bill. Will he really? I don't know.)

But far more importantly, a federal judge in Louisiana has struck down (for the second time) a license plate as unconstitutional. The license plate is one of those plates that has a message that you can pay extra for, like the ones that read "Kids first," or "I support unions." It's an anti-abortion license plate. I blogged in February about the same thing in South Carolina (my archives are missing so I can't link to the post at the moment), and argued that the "Stop abortions," or "choose life" plates can't be any more unconstitutional than the "stop terrorism," or "Kids first" license plates. The Louisiana Judge disagreed in 2000 and struck down the "choose life" license plates, but the court of appeals overruled him.

Aha, the plaintiffs said, you're right! If the "choose life" license plate is unconstitutional, then the "stop terrorism" license plate is unconstitutional. So now they've challenged the state's license plate program altogether, on the grounds that it is a public forum that engages in unconstitutional viewpoint discrimination.

Oddly enough, this strikes me as a much stronger case. I think the Supreme Court has only dealt with license plates once before (I have no idea what 5th circuit law is on license plates) in a case called Wooley v. Maynard that held that New Hampshire citizens could cover up the "life free or die" motto on the NH plate. This case is very important here because it held (wrongly, IMHO) that a license plate was the speech of the driver (or car owner, or something), and not the speech of the government. By implication, therefore, the government's license plates here are the speech of the drivers and might very well constitute a public forum. (Which is not to say that the court isn't free to repudiate Wooley v. Maynard. Heck, the court can repudiate whatever it wants. And it does.)

Now Judge Duval wrote:

If the state built a convention hall for speech and then only allowed people to speak with whom they agreed with their message, the state's actions would be in ocntravention of the First Amendment . . . there is no significant difference in the case before the court."

Domain of extraordinary gentlemen:

One point that Lawrence Lessig often harps on is that people today just don't get the public domain. It's not part of our consciousness, simply because it's so old. And because it's not part of our consciousness, we don't usually think about how it is such a vital resource for generating new cultural materials--and how, were it to be broadened, it would serve this purpose even better. Which is why posts like this are so refreshing to see--big, prominent, relevant examples of the power of the public domain.

I've personally been rather excited to see The League of Extraordinary Gentlemen. Seems like a fun film, and I read good advance reviews. But I didn't realize this key point, which was pointed out to Lessig by someone named Eric Hughes: all of the characters in LXG are in the public domain. Lessig's challenge to those who would push for perpetual IP protection:

Do you think there would be more of these works if there were a gaggle of rights holders to clear permissions with?

If you haven't yet, please do check out the Eric Eldred Act homepage, and consider signing the petition in support of this proposed law, which would require copyright owners to pay a nominal (ie, $1) registration fee fifty years after the creation of their work in order to maintain copyright protection; if the work isn't worth the fee to the author, it would then pass into the public domain. Given how few works retain commercial value fifty years after creation, this would result in erasing a great deal of the damage of the Sonny Bono Copyright Extension Act, without hurting those who still derive income from their works. Nearly Pareto-efficient.

Comments?:

With our new template dawning soon, there has been some talk about whether to add comments to our blog. (For an example of what that would entail consider Matthew Yglesias's blog.) Now I'm currently against them, but several of our bloggers are in favor of them. This isn't a total democracy but nor is it a dictatorship. So I'm curious to see if any readers have strong and/or reasoned opinions on whether or not they're a good idea.

My tentative thoughts are that they are bad for several reasons:

1: They clutter up the blog with a lot of different voices. This can be particularly the case on a fairly extensive group-blog like this one.

2: They discourage blog-related links and emails, since people who have comments or counter-arguments can simply stick them in a comment rather than blogging back or writing an email. For those who prefer emails and links, this is a bad thing.

3: They can be abused. Because comments are sometimes uneditable and often unverifiable, people can post as each other and post all sorts of inane and stupid things. Of course, this is the internet and people can do that anyway, but I find it less vexing when it's not happening under my (shared) banner.

4: For those (like myself) who feel compelled to counter reasonable counter-arguments, comments can create a whole lot of work. For some reason not entirely clear to me, people are much more willing to publish repetitive or incomprehensible remarks in "comments" than in emails or blogs. This forces conscientious bloggers to try to decipher them.

5: They can look lonely. A post with no comments at all looks so . . . silly.

6: On a self-referential group-blog like this one comments can get particularly dizzying for the bloggers; if somebody has commented a response to a blog post, when does a counter-response merit a counter-comment and when does it merit a post of its own?

7: They make the blog much harder to fully read, especially on a slow computer. No longer can you simply scroll down post after post looking for something interesting, or reading everything. Instead you have to click at the base of each post to see if anybody has tucked a hidden gem. If bloggers are commenting on one another's posts (see 6) this can get worse.

A "Comments" function turns a blog into a message board. This isn't necessarily a bad thing, and it's particularly warranted, I think in certain circumstances, such as on vast impersonal publications (like the New York Times or Slate), on popular single-person blogs (like Yglesias), and on blogs that occupy a particular . . . niche (like the Hoosier Review or Crooked Timber) they make quite a bit of sense. And it's also true that because they make it easier to comment on a post, they may increase the total amount of dialogue, even if they shift it from links and emails into javascript. Finally, there is the all important empirical argument that comments increase traffic.

I have no idea if this is the case. Certainly it seems that one of the draw of Matthew Yglesias's blog is the pitched debate that often rages in his comments section. On the other hand, Matthew Yglesias's blog is much different from ours in a number of ways, and I confess I often can't make it through the comments on his posts, even at times like now when the posts are few and far between. Maybe I miss a lot of great stuff. I really don't know. But the standards people employ for posting on message-boards seem fairly low.

My personal feeling is that comments don't add anything to the blog that can't be achieved with technorati. But if you have feelings either way, please let me know, and let me know any reasons you might have.

Nubility:

Why didn't somebody tell me that the 2002 Beaujolais (even when not quite so nouveau)is so yummy?

And why do I feel okay using the word "yummy" to describe delicious wines but not other delicious things?

Burberry:

The Yale Diva posts about a burberry skateboard with approval (if incredulity). I want to voice my strong opposition to the burberry plaid, which has now proliferated everywhere. When I was in Italy I made a game of counting the number of burberry plaids I saw. I averaged about 50 a day.

The burberry plaid is unhistoric, unattractive, and trite.

Harry Potter III:

Susan Ferrari offers an article on Harry Potter by Wendy Doniger. The whole thing is twice as read-able and twice as convincing as Byatt's NYT piece.

A note on Blog-etiquette:

A fair note to those who email. As a general rule I don't believe in posting people's emails without their permission. With blog-related emails the rule changes, I may quote your email unless you specifically ask me not to. In any case, I'll ask permission to attach your name to your email unless you make it clear otherwise. My understanding is this conforms with general Blogosphere-practice, and if you're skittish about having blog-related comments quoted, please say so. Non blog-related comments are presumed to be private.

Nonromantic rejection, again:

I do not share Will's assumption that rejection is only feared in romantic situations. Chris made a good point in that objects of attraction (those we are likely to become self-deluded about) are most often people who "...you're likely to run into on an ongoing basis." However, we will fear rejection not only by those we are attracted to, but others whom we will likely see in the future. My choice of the phrase 'social acceptance' was not just an assertion of my position as a fluffy/friendly liberal... I really meant that acceptance is an issue not just for romantic situations but for a good number of general social situations, as well.

As I noted, confidence is a key issue in whether or not we are willing to take risks. The reason it seems as if romantic situations are the only variety in which fear of rejection is prominent is that confidence in social ability tends to be weakest in most people when it comes to romance. We've all been students, workers, friends, family... we're not so worried about rejection in these cases because the usual level of confidence which one gains by age 18 is enough to guard against the serious emotional threat of rejection. However, I can tell you it was certainly difficult to make the move from a decent public university to an elite, private one. All the social dynamics around me changed, and I once again found myself reluctant to express original opinions. Instead, I accepted non-judgment by teachers and fellow students. Others go through similar situations all the time: entering a new job, changing schools, etc. Sometimes it's just safer to accept the status quo, where nothing is risked through words or action. ("Better to keep your mouth shut and be thought a fool than to open it and remove all doubt." So said Mr. Twain).

I do agree with Matthew and Will that the pain of a crushed self-delusion is major. However, it is out of mere reluctance to risk the status quo, by facing situations head on, that these self-delusions are allowed to form in the first place. Indeed, over time, the desire to know the outcome of this delayed risk will trump the desire to avoid it. When this happens, whatever delusions have been allowed to form will most likely crumble.

BTW, sorry about that "Simply speaking" stuff. I revised the sentence a few times and never changed that. Woops.

Points Beyond:

Jack Balkin helpfully replies to the question I emailed him... when did the Supreme Court's relationship with international law begin? And as he helpfully points out, we must have replied upon international law at some point since we didn't start with any law of our own.

But is it a good thing to have current constitutional interpretation tied to other western nations? What if Americans want to have different norms than other Western nations? We can adapt and change the American constitution and practice, but what are we supposed to do about countries we have no control over?

To be specific, suppose Texans wanted to change American society in whatever way was necessary to render the death penalty once again permissible against the mentally retarted. What evidence would satisfy the court that our standards had evolved in that direction?

On the difference between romantic rejection and non-romantic (e.g. work or school) rejection, I think part of the problem is that objects of (possibly unrequited) serious attraction tend to be people who you're likely to run into on an ongoing basis. There are some fairly hefty disincentives to being rejected by someone, and having to see or talk to or work with them daily.

In contrast, being rejected for a job or for a place at a school doesn't usually have that same level of daily presence: the reminders of the rejection tend to be much further away (since you obviously don't have the job you wanted), and when one ventures, less is lost.

Even better, this hypothesis admits of some level of testability: find a group of people who sought to move into jobs and who are now in frequent contact with the successful candidates (i.e. moves within the organization), and compare against those who aren't.

Will asks : "Does it therefore hold that those people who are not self-deluded shouldn't particularly fear rejection worse than non-selection? I think so.".

It's not clear to me that this is the case. There is some degree of comfort in living in a state of indeterminacy (just as there is in living in a determined state): it's not clear to me that there are rational causes to prefer one to the other. Throw in the fact that there may be negative externalities involved in collapsing the romantic quantum state (if you will), and you may well be rational to prefer non-selection over rejection. As an example, consider that revealing that one is the subject (object?) of unrequited devotions is likely to irrevocably alter the hitherto existing relationship between the devotee and the devoted.

Nonromantic Rejection:

As a new blogger, I would hate to be known for unnecessarily reiterating myself, but I believe that at least part of the answer as to why people fear rejection less in nonromantic situations relates well to my previous theory on self-delusion.

When someone applies to a college or for a job the possibility of rejection or loss of social status is much the same, and certainly the control is largely in someone else's hands, though I believe there is a crucial difference. The difference is when applying for a job or the like it is far less likely for a person to have some intricate alternate fantasy playing out in his head. At times this is not the case, and in such cases I believe people have very much the same fear. If I am correct in my assumption as to the former girlfriend Will is referring to, then I certainly believe this to be the case with her. Of course, some people are just generally fearful of life and lack the necessary cofidence to tackle it regardless, but for the rest of us other confounding factors may be necessary to steer us away from the quest of knowledge.

Simplicity and Self-Delusion:

Incidentally, The University of Chicago is among the few places where a student could (in seriousness) begin a sentence with "Simply speaking," and then use the words "rejector," "rejectee," and "exogenous," the phrases "negative outcome" and "status quo," and a set of parentheses all in that same sentence. I poke fun only because the "simply speaking" sentence is one of the least simple in Matt's post.

That said, I think I hold with Matthew's self-delusion theory, (echoed in Chris's quantuum theory). This demands a new question. Does it therefore hold that those people who are not self-deluded shouldn't particularly fear rejection worse than non-selection? I think so.

[For those of you just joining this odd thread, the original question is-- why is romantic rejection more painful than romantic non-selection?]

But this leads us to our necessary follow-up. Why is this fear of rejection so uniquely related to romance? I think most people recognize the "fear of romantic rejection" we've been discussing as a relatively common phenomenon, whether they feel it themselves or not. But I don't know of very many people for whom this same fear of rejection extends to other contexts. Do you know people who didn't apply to certain elite schools not because they didn't want to waste the application fee, but because they were afraid of the pain of a Harvard rejection? (Cambridge University, incidentally, doesn't seem to have an application fee at all). People sometimes don't submit job applications out of laziness, but I've never heard of somebody saying "well, I'd apply but it would hurt too much to get turned down."

Now maybe people like this exist (indeed I think I've dated one), but I think this sort of reaction is much rarer. In the job or college context, people are much more likely to say "well, I want to find out" than they are in the romantic context. This is particularly strange because job and college admissions often purport to be based mostly on "merit" while romantic evaluations are much more likely to differ widely from person to person. Therefore we ought to take a Harvard rejection as a deeper blow to our self-esteem than a refusal of a Prom invitation. But we don't, do we?

Is this because self-delusion runs deeper in romance than in work and school? If so, why? Is this because it's more important to us to "find out where we stand" in Harvard's eyes than in the eyes of our crush? Again, if so, why?

Any Means Necessary:

Well, it looks like this has been made public, so I'm allowed to blog about it.

Ward Connerly of California-Proposition 209-fame is launching a ballot initiative in Michigan to ban Affirmative Action.

For those (like me) who have complicated Constitutional feelings about Affirmative Action but nonetheless think that government racial AA should be categorically done away with, this is a Very Good Thing. My tentative prediction is that if Connerly can get the signatures necessary to get on the ballot, the measure will smoothly pass. After all, white Michiganders are probably less interested in paying for an "elite" Law School than for one that they have a fair shot of getting into.

Anyway, I highly approve of this sort of thing. Political battles should be fought politically.

Quidditch Resolved:

Ahh, Amy emails to solve my Quidditch dilemma. The overall rankings in Quidditch depend not only on victories but on victory margins. Having a solid performance from one's seekers can blunt a sharp loss and sharpen a victory. Ireland's team is one clear example, but if I recall correctly, Gryffindor wins the house cup one year due only to the margin of victory earned by their seekers Quaffle-goals. (This was the season that Harry Potter failed to catch the snitch in one of the games).

Those to whom the above seems like a foreign language are advised to read the Harry Potter books.

Back:

After a week spent in rural Wisconsin, I am now back in electronic contact with the rest of the world. Hi world. Nice to see you again.

It's Too Darn Hot:

So here in D.C. it's been over 100 degrees on a fairly regular basis. Mark Bittman has the solution-- Borscht.

Navel-Gazing:

This week we've averaged well over 100 visitors a day (no doubt with the help of Jacob Levy's plug over at the Volokh Conspiracy). But we'd really like this to be our most popular month ever, and with our new co-bloggers, I hope that is possible.

So, please, if you like have your own blog, and you like our website, please consider adding us to your blogroll (that list of links on the sidebar). If you like this blog but don't have one of your own, mention us to a friend who you think might also be interested. As you can see, we cover a pretty wide range of topics from a pretty wide range of viewpoints. I'm pleased by the number of regular visitors we have now, but would love to spread the word.

And obviously, don't hesitate to send along your own suggestions for improvements, be they cosmetic (our travelling co-blogger Amy Lamboley is currently at work on our new template), substantive, or something else entirely. God, I feel like a public-radio pledge driver.

And incidentally, if you're visiting from the domain of harley-davidson.com, please drop me an email; I'm highly curious.

Lines on the map:

Interestingly, we've just been through the redistribution process in Alberta (maps) and are just finishing it up federally. It's been a bit contentious on both levels, although for rather different reasons (federally, the outgoing Prime Minister may want to throw a kink into his likely successor's election plans ---Globe and Mail story; provincially, there's some controversy over one of two major cities not gaining an extra seat when it's on the borderline of qualifying for one, and definitely will when you take growth into account).
However, on the whole, there seems to be little concern that the redistribution processes are politicized.

For Alberta, the new provincial boundaries are set by a committee of five: one appointed by the government who must be either an officer of the Legislature (ethics commissioner, auditor general), a university president, a judge, or someone similar; two appointed by the Premier; and two appointed by the Opposition. Of the each pair of political appointees, one must be resident in a city and the other must not be. The federal boundaries are set by a panel of three, with the chair a judge appointed by the chief justice of the province and the other two members appointed by the federal Speaker.

Some interesting links from Elections Canada on the rules for each province and federally:

• Criteria for determining boundaries
  
• Commission compositions
  

On Romance:

I think the salient difference between rejection and non-selection is the active nature of rejection: while non-selection is essentially a state of purgatory, in a never-never land between happiness (acceptance) and despair (rejection). When you're romantically rejected, it often seems as if there's a personal judgement made about you (which, of course, isn't necessarily the case). Until you ask, though, the judgement is suspended. To misappropriate an analogy, think of romance as a quantuum state.

I think Matt's insight into the control issues around asking someone out is perfectly on point. I have to admit that I'm a control freak, and it's very hard for me to willingly get into a situation where control is in someone else's hands, particularly on such a sensitive issue. On the other hand, there is some satisfaction in finally knowing the answer (even if it's "no"); it's on occasion taken me three years to get there.

Will wonders what I think of Naomi Klein's suggestion in the NY Times Magazine that there might be a fourth wave of American emigration to Canada (the first being during the US Revolution, the second being in the late 1800s and early 1900s when the US west was effectively finished for agricultural settlement, and the third being during the Vietnam War). In four words, I'm not so sure.

Emigrating to a new country, even one as similar as Canada is to the US, is a highly non-trivial prospect. In an age of relatively selective immigration (compared to, say, the late 1800s and early 1900s in both Canada and the US), you need to be fairly well-educated to be admissible as an immigrant, and you need to have relatively few substantial ties to your present country. This points to permanent migration being mainly the province of the young educated class (i.e. future professionals who've just finished a degree). It's not at all clear from my vantage point that the US is anywhere near to being sufficiently unwelcoming to these sorts of people as to make them think about going elsewhere for political reasons (as was the case for much of the third wave of US-to-Canada migration).

There also really aren't big economic factors that would fuel such a migration: while the Canadian economy is doing rather better than the American one, it's so closely intertwined that this is unsustainable. In any case, it's not doing so much better than the US economy as to draw businesses and young would-be professionals from the US. In fact, the reverse continues to be the case --- I and many of my friends would seriously consider moving to the US were we offered work (and many of us have applied for jobs in the US).

The Pains of Rejection (I thought I left these posts to steadywind):

Well, well... I have returned to resume my position as Crescat Sententia's token lefty/Green. I had planned on writing a post about the evil Democratic redistricting plan here in Maine, but fmr US Rep. David Emery (certainly not name-dropping) seems to have forgotten that he promised to send me jpeg's to illustrate my points. I will bug him tomorrow in Augusta, if I see him. I also plan to write a post about why I feel the survival of the Democratic Party, as we know it, is at stake in the next Presidential election. All in all, I plan on working out a lot of my frustration with Dems in the next few months.

But for now, a more personal matter. I was intrigued by the recent posts regarding rejection and non-selection by Will and Matthew. [ BTW... a warm welcome to our new co-blogger. New viewpoints are always a pleasure. ] I particularly like Matthew's point about willful self-delusion. My sense of what he's saying is that willful self-delusion can occur when a crush is held secret and it is the crushing of said delusions, when reality finally creeps its way into the situation, that is the true cause of the pain of rejection. In other words, hope and a wishful mind create false assumptions about a person/situation. These false assumptions are relied upon to such an extent that, when they are chopped down by reality, a great deal of sorrow is felt because the person feels the loss of hope/excitement that was created by those assumptions.

This is a damn good theory by my accounts, but I think perhaps rejection can be explained in a more general way. Simply speaking, rejection is a negative outcome in change of status quo, initiated either by the exogenous forces (a rejector) or as a result of a risk taken by the rejectee. I am not concerned with the exogenously initiated case, because such situations are quite infrequent and most often spontaneous. Getting 'dumped' or having some random person at a frat tell you you're an insufferable bitch are the only circumstances in which this really happens... if you're overly concerned about this, you may be in trouble. Alternatively, a man asking a girl out for a date has much to be concerned about. He is risking all sorts of things: any hope he has for a relationship with the girl; any level of inconspicuousness, if he is in a crowd; &c. Worst case scenario is that the man will have his hopes dashed and will end up being humiliated (to a degree) in front of strangers and friends alike. The real reward for getting the girl to say yes is having a mere crack at whatever he is looking for in a relationship. The flipside of that risk is fairly great: a loss of his current level of social acceptance.

The most important factor in all of this is the loss of control of the situation. This is the real key to understanding the rejection vs. non-selection issue. Taking a risk and giving up control could result in a negative judgment by one or more people, which the person being judged is completely powerless to affect after the judgment has been made. This results in a net loss of social acceptance. Accepting a mutual non-selection scheme (choosing non-action and accepting others' non-selection) requires no loss of control. Its risks are minimal, and should some positive exogenous force surface, all the better. Non-selection requires only that a person be willing to accept the second-best option: non-action/non-judgment (assuming taking a risk and getting a 'yes' would be best). Participating in a mutual non-selection scheme provides a person with an ensured outcome, which is no worse than the status quo, and which the person can predict and prepare for. Even though the end outcome is the same as the negative result of risk-taking (no significant other), the process is emotionally safer if the rejection-averse person simply chooses not to risk the status quo. The problem with this thinking, of course, is that accepting a non-selection scheme is really no way to find a significant other.

Is there an antidote to the dominance of this scheme? Yes, it's called confidence. (Ever notice how the really confident guys are the ones who ask the girls out. They get shot down every now and again, but they do much better than those who never risk it.) We fear a certain loss of social acceptance when we risk our status quo... and not just in the search for love. It is the fear of the negative judgments of others that has certainly prevented me from doing things (*cough*) in the past. The only way to prevent the paralysis that fear of rejection causes is to have confidence, both in your intrinsic value and in knowing that social acceptance levels have ups and downs, but tend to stabilize over time.

Nabokov, on Freud:

In response to a Freudian explication of his works, the great one wrote:

One may wonder if it was worth Mr. Rowe’s time to exhibit erotic bits picked out of Lolita and Ada– a process rather like looking for allusions to aquatic mammals in Moby Dick. ...

Who the hell cares, as Mr. Rowe wants us to care, that there is, according to his italics, a “man” in the sentence about a homosexual Swede who “had embarrassing manners” and another “man” in “manipulate”? “Wickedly folded moth” suggests “wick” to Mr. Rowe, and “wick,” as we Freudians know, is the Male Organ. “I” stands for “eye,” and “eye stands for the Female Organ. Pencil licking is always a reference to you know what. A soccer goal hints at the vulval orifice (which Mr. Rowe evidently sees as square).

Let the credulous and the vulgar continue to believe that all mental woes can be cured by a daily application of old Greek myths to their private parts. I really do not care.

Literary psychoanalysis:

In Will's discussion of A.S. Byatt's NYT piece on Harry Potter, he comments,

: The application of Freud seems almost like a strange parody of literary analysis (and maybe it is intended as parody).

Henry James lends himself well to such analyses -- it seems perfectly plausible that his writings may have been influenced by the work of his brother William, the famed Harvard psychologist. Certainly, it is known that he thought people read one word, even one part of a word, at a time. One of his favorite sentence techniques was the formula "He struck her, she realized, as a fish out of water in the prim, contained world of the widow's cottage." [This is not a quote, but an example of "He struck her, ___, ____."] He used the idiomatic 'struck' repeatedly to show a character's violence or lack of control, believing that the reader would initially read the sentence as meaning that a blow was struck, only to understand a second later that HJ wasn't speaking of any physical acts. This theory that people read by such small discrete units is now, I understand, discredited; still, it's very useful to know about in understanding him.

Freud's theory that children dream of being orphans, living with families to whom they are not related, is fairly well-known. One of the stages children passed through was the stage when they looked at their parents and cried out, "There's no way I could be related to these people or, God help me, resemble them!" I don't know what current psychologists think of it or how common it actually is (when one has an identical twin sister who looks a lot like one's mother, such fictions become difficult to maintain, but I don't know that plausibility was ever a key part of the orphan dream). But even if the orphan dream isn't supported by psychologists, it is a recurring plot in literature, even in fairy tales.

Drawing more Lines:

The New York Times runs an op-ed on why independent districting commissions are good. It makes some good arguments, but doesn't go far enough. As I've said, one of the troubles with gerrymandering restriction is that it's something like disarmament. The incentive, regardless of what the other side does, is to keep on doing it.

This is so because states often have partisan preferences without having partisan consensus. One example of this is in the oft-cited Texas. There's simply no political incentive for the Republican majority to stay its hand. This is even more so in states whose partisan allegiance is all but assured (as Texas might one day become). When there's no worry about turnabout, why bother with fair play?

Now one solution is this direct appeal to voters, which is what the Op-Ed piece is trying for, I suppose. If enough people in a state demand a fair system, they can get one, even if partisan politicians would rather play district-line-etch-a-sketch. But I'm not actually convinced people do want a fair system if the current system supports them. Why should the Republican voters in Texas, any more than the Republican candidates in Texas, want a system that gives more Democrats seats? Only if they can extract a similar concession from New York or California. So, since the country actually approximates an even split, this change needs to be on both sides of the aisle. Federal legislation can't do it, so states should either enact conditional redistricting statutes (I'll switch if X other states of Y size switch) or suck it up and amend the Constitution.

Guns:

So the Koch fellows were treated today by a debate on the Second Amendment featuring the Cato Institute's Robert Levy and and The Violence Policy Center's Matt Nosenchuk. Both participants did good jobs, though I'm not going to rehash the entirety of the debate in particular, mostly out of fairness to Mr. Nosenchuk, who did the best he could with a losing hand of cards and a better opponent.

But after Levy gave us all of the arguments in favor of individual rights and Nosenchuk gave us all of the reasons to believe that the rights belong to a militia and are therefore obsolete, I was still left with some questions. These may not be the questions most people are asking in this debate, but that's fine. The empirical questions are, well, highly empirical and don't survive blogging well. The legal questions are, well, highly legal and absent clear caselaw, are better left to people with a broader and deeper understanding than me of history, state constitutions, and all the rest.

So, if there is a 2nd Amendment right for a citizen to keep and bear arms, what exceptions should it have? This is particularly problematic for those of us (like myself, and apparently fellow Koch-head Josh Barro) who think that the First Amendment might not permit any exceptions, or at least not nearly as many as seem "clearly obvious" to the Court. Does an absolutist view of the First Amendment commit one to an absolutist view of the Second?

Secondly, should the right to keep arms be treated with different scrutiny than the right to bear them? Both words, after all, feature in the same place of the same clause. (This is a point often raised about Establishment and Free Excercise in the First Amendment; the definition of religion, it is widely thought, ought to be the same for each purpose). Levy suggested to us that it would be easier to win a victory for the right to keep arms in one home than the right to brandish them about on the streets. I think this might well be so, but should it?

Conversely, for those who imagine some more nebulous role for the 2nd Amendment, what is that role exactly? (This is the question that Nosenchuk kept dodging). What gun regulations would unconstitutionally infringe upon the right of the people to keep and bear arms? (As Justice Scalia says, "you can't beat something with nothing"). Nosenchuk simply told us that not all rights are Constitutional rights. This is true, but hardly on point when interpreting a Constitutional provision that explicitly mentions arms.

UPDATE: Venkat Balasubramani of Balasubramania's Mania writes in with some tentative thoughts on guns. He suggests that we construe the Second Amendment more narrowly than the First because the First references "freedom" and the Second fails to include a right to "utilize" our arms. So maybe the Second is less concerned with actual use than the First. I'll wait for Balasubramani to expound this view more fully, but I think there's a clear reason that the founders didn't mention a right to "use" arms in the Constitution. Murder statutes are one example.

Now Featuring:

As you can see below, the opinions available here have once more increased. Matthew Hengeveld is a student of philosophy (and other things) currently at Carnegie Mellon University but eagerly seeking escape from the city of Pittsburgh. I've known him approximately forever, or at least for as much of forever as really matters. Which is to say I've known him for about as long as I've been seriously committed to rational thought. I'll leave you to guess when that would be. Enjoy.

Regarding the question of why rejection hurts more than non-selection, I believe that the culprit in this instance, as in so many others, is willful self-delusion.

When a crush remains secret a person can continue believing whatever he can believe whatever fantasy amuses him about the object of his affection, whether this be something romantic or otherwise. He can live with his pain, playing the role of the sufferer, lover from afar, or whatever suits his particular tastes.

The minute you reveal your secret to the object of your affection, however, you are allowing for some basis in reality. Things often do not play out as expected, and any previous delusions are inevitably shattered.

If there is initial success the fantasy or some new one is able to continue, and as you actually get to know the object of your affection better more and more reality slips in. More and more the presence of the other person becomes something assumed. When the relationship ends in this case it is like having the chair you are sitting on pulled out from under you. Something that has become real and assumed, at times unnoticed, is suddenly gone. Certainly we should expect this to cause more pain in all but the most imaginitive.

Rejection and Non-selection:

So here's a romantic query.

One hears a lot about the pain of rejection, how it hurts to be emotionally or physically rejected by the ones one loves, and all the rest. But one very rarely hears about the pain of non-selection. Why is that?

There are two versions of this question. The first: why are people hurt more by eventual rejection than by immediate rejection? I think most people would suffer more emotional pain from being turned away by a year-long love than if the same person had turned them away from the start. Why?

Second, why is rejection more painful than non-selection? Sometimes people avoid telling another person that they harbor romantic feelings because of the "fear of rejection." But why would being rejected be any worse than the current state of affairs? Some say it is because before one is rejected one still nurses some hope, but what about in the case of somebody who's almost sure to say no, anyway?

I think there are tentative answers to these questions. Rejection after a long time is more painful because of the betrayal of the emotional reliance one has placed on the other. Non-selection is preferable to rejection because it is secret; only your closest friends know about the crush you've nursed for years on the girl who lives on the first floor of your building. But both of these answers are surprisingly metaphysical. Are their simpler or alternate explantions? What's so painful about rejection anyway?

Rise of the Group-Blogs:

As heralded by Jacob Levy, and uncovered via Instapundit, Kieran Healy et.al. have a new group-blog called Crooked Timber.

Harry Potter, redux:

At the risk of turning this into the Harry-Potter-blog, I'll add a few more things to yesterday's thoughts on Harry Potter. First comes this article by A.S. Byatt (of Possession fame). I can't say how persuasive many people find Byatt's literary analysis, but I am not particularly convinced. The application of Freud seems almost like a strange parody of literary analysis (and maybe it is intended as parody), and the allegation that Rowling lacks serious literary merit that Terry Pratchett possesses? All the same, Byatt writes very well and is impossible to effectively quote. Read the opinion.

A reader also writes in to underscore the difference between Rowling and Snicket-- the former is a brand of fantasy, the latter a brand of magic realism.

jkr has to bring in all this magic and weirdness to explain what goes on; snicket simply tells you, with a straight face, that sunny climbs up an elevator shaft with her *teeth* and doesn't bother to explain it with spell x y or z. it just is. i'm a MUCH bigger fan of this attitude.

Flattery:

Waddling Thunder gives us undeserved praise and also reveals his not-so-secret lust for ferocious power.

Eliciting Responses:

As readers know, I'm fundamentally opposed to putting "comment" javascript in blogs, especially group blogs. This is not because I don't like feedback, but becaust I really like blog-related email. So if anybody has any advice about how to elicit more emails from readers on anything at all, please let me know.

Although you probably don't need to mention the irony of soliciting blog-related emails about blog-related emails.

Strategic Dating:

Game theorists and sleaze-hounds will enjoy this Slate piece on how movie stars choose their public dalliances.

At the top are "major royalty" (that is, Prince William). Next are movie stars, then TV stars, then minor royalty. At the bottom: rock stars. (Rock stars, after all, will date anyone. Rock stars date porn stars.)

Gossip:

Ahh, this blog is not really the place to spread teacher-gossip, but I've just learned that my one of my most formative teachers has gotten married, and is leaving academia. . .

Fun and Games:

CNN is shocked, shocked, to discover that lots of people who play college computer games are not dorky guys at all. Indeed, their study suggests that 60% of girls and only 40% of guys play computer games. If that statistics is true, it surprises me too.

The blogosphere has just gotten its feet wet on this one-- Dungeons and Dreamers thinks this has to do with "Thinking digitally"; Voyage to Mars points out games have been mainstream for twenty years; and Meatless Wieners is just angry (and angry at MSNBC too).

I'd just like to note that true gamers, i.e. the Dungeons and Dragons, funny colored dice and late-night orog party sorts, know that college computer games are nothing in dorkiness compared to real gaming. And I'm going to pretend I don't know that to be true.

What's the distinction between running a swingers' club and holding an orgy?

According to Montreal Municipal Court Judge Denis Boisvert, a door. A father-daughter pair were convicted of running a bawdy house, on the grounds that the swingers' activities were visible to those not actually taking part. They were acquited on a prostitution charge since while admission to the club wasn't free, according to the evidence, the sex was.

The defence team, while unhappy about the convictions, is pleased that the court held that swingers' clubs themselves were not illegal. They view this as a continuation in the trend established by the Supreme Court of Canada in R. v. Tremblay [1993] 2 SCR 932, which held that peep shows don't constitute bawdy houses.

One more NYT Article:

To continue the absence of much productive blogging for the day (side question: is "productive blogging" an oxymoron?), I add this last article, via Eliana Johnson.

It's about a tall, redheaded model wandering around in her underwear and Henry Kissinger. No joke.

Questions of Travel:

At the beginning of October I will be leaving Chicago to study in England. Anybody with advice on inexpensive but safe flights from Chicago to London that leave in October and return in December (or better yet, open-ended), will earn my undying gratitute.

Quidditch:

So I'll confess it. I've started reading the Harry Potter books. I still haven't read the latest release, Harry Potter and the Order of the Phoenix, but in the last two weeks I've read all of the first four. And frankly, the books are pretty good. I'm still undecided on whether they're better or worse than the Lemony Snicket books, a childrens series with a number of similarities. (A recurring nigh-unkillable villain responsible for the death of the parents of the hero(es); a sequence of puzzles and obstacles to be thought around; a group of undependable caretakers; a terrible sequence of foster homes...) the major difference is that the Baudelaire children of Mr. Snicket's work have nobody who really understands what's going on; their super-guardian Mr. Poe is easily duped and rarely helpful. Harry Potter, on the other hand, can fall back not only on the Weasleys and his godfather, but also on Professor Dumbledore, the only Wizard ever to make Voldemort quake in terror.

But at any case, that is not the issue. What is at issue is the game of Quidditch, which I confess I don't quite understand. Rowling seems to have conocted the sport by mixing the impenetrable rules and quirks of cricket, the intramural rivalries of rowing, and the structure and national fascination of soccer (aka football). The end result is . . . strange. Which I realize is what one should expect from a series of children's books about powerful teenage wizards.

So the Quidditch rules, as I understand them-- there are seven players to a team; three seekers (forwards), two beaters (defenders), a seeker, and a keeper (goalie). The seekers try to throw the quaffle (the ball) through their opponent's goal. Meanwhile two giant heat-seeking balls (bludgers) try to hit all the riders; the beaters are given bats and are charged with hitting these into people strategically. Then there's this tiny golden ball called a snitch, fast and nearly impossible to see. The seeker's job is to catch it. You get 10 points for every Quaffle-goal, and 150 points for catching the Snitch, and the game ends only when the snitch is caught. Oh, and the whole thing takes place on broomsticks.

So what's weird is that the quaffle seems almost entirely irrevelant to me. To win, the snitch has to be caught, and it is worth an overwhelming number of points. Furthermore, your opponent will only catch the snitch when catching it would give them a victory, so really, to win a team has to catch the snitch. That being the case, why do teams even bother with telling their seekers to try to score points. Why not put two of them on permanent scout duty, helping their seeker find and obtain the snitch, and put a third one with the beaters and the keeper to defend the goal?

so far I've only found mention of a single Quidditch game where the team to catch the snitch wasn't the team to win the game, and even in that game the team that lost and caught the snitch might well have avoided disaster if their seekers had been devoted to defense and snitch-spotting rather than wasting their time.

So hopefully some Harry-Potter devotee can help me out, but why bother with the quaffle?

New York Times Roundup:

Naomi Klein suggests that just as the Vietnam War was a U.S.-brain drain bringing tons of talented folks to Canada, that our new conservativism will do the same, because "The U.S. has become a harder place for so many people." This seems unlikely to me, since the folks traditionally hurt the most by this sort of conservative are not the professionals and successful artists who Klein thinks constitute the "brain". This helps to mark the difference between turning right on social policy (like the draft) versus turning right on economic policy, and I'm not sure Klein gets (or wants to get) that. Surely Chris has more thought-out thoughts.

In an ABC Interview, Sandra Day O'Connor verifies that she's not going anywhere for the next year, while Stephen Breyer discussed the court's growing disagreement over whether to place any weight on international practice.

There's also a piece on data addiction describing OCD: online compulsive disorder. One alleged finding is that those who multitask-- checking email and writing a report at the same time, for example-- spend 50% longer on the whole thing than they would if they did the two things sequentially. I don't know about the details of the study, but if they used the email-checking example, this is highly misleading. As all high-volume emailers know, checking your email intermittently over a period of time can net you a lot more responses than simply checking it once. You trade messages throughout the day with a friend, you get in an email argument with your sister, and another with your law teacher, and so on. So while it may be true that it's *faster* to check your email once and then write the report, it doesn't accomplish the same thing at all. It's almost like saying one can make a conversation take up less time by simply saying your piece once and having done. In other words, don't think of email as a giant time-suck that makes writing a report take so much longer. Think of writing the report as a way to take up the downtime between emails. At least, that's what my paper-writing habits in school were like.

Here's a weird piece on corporate blogs, and no Sunday NYT issue would be complete without a long asexual piece on nudity. Eschewing naked summer camps, the Times now covers nakedness on Broadway.

Chris Jones:

As will be apparent, Chris Jones of Canada has joined us for a time. As will also be apparent, it's nearly the end of the 4th of July Weekend and Mr. Jones has bearley gotten started. That being the case, he'll be here with us for the ensuing week. Stay tuned, and I'm back from my blogging holiday.