Community Coffee, I adore your coffee* above all others for its exceedingly high caffeine content, robust taste without a hint of burnt in the classic Medium Dark roast, chicory flavor in the smooth New Orleans blend without bitterness, but --

-- why, oh why, must you have such an incompetant shipping department?**

I specifically ordered my coffee to be shipped to the address of a friend who has a building manager to sign for packages. I didn't want it to arrive at my place because there's never anyone home during the day to sign for it. What happens? They ignore my shipping instructions and send it to my home, the billing address.

Argh... at least I know from past experience, when they sent it to the wrong street, that if I call up and point out their error to them, they'll FedEx it overnight to the right place. But it would be so much cheaper and less of a hassle if they could do it right the first time.

*They also have quite drinkable canned sweet tea, but I'm not in the habit of paying for the shipping of twelve-packs.
**Like many who move out of Louisiana, I remain addicted to this certain home brand of coffee. And, really, so long as the coffee gets to me eventually enough and my father remains reluctant to play importer for me, I will always order from them.

If you didn't have enough of the Veil of Ignorance last week, here's more . . .

William Saletan is everywhere.

Well, it's hard to argue with anybody that follows this closely in Econ-God Steven Levitt's footsteps.

Tyler Cowen thinks that there are so many good blogs out there nowadays that the most widely-read blogs will be those that "cream-skim" (that is, taking the most useful posts from a wide variety of blogs).

Pardon, but an RSS feed can do that. The reason I don't read Instapundit is that I don't particularly agree with Glenn Reynolds about what's wheat and what's chaff. Look at my blogroll, which contains a number of fairly low-circulation blogs, and you could probably guess that.

Sure, there's a place for aggregator blogs like Instapundit (or more critically How Appealling). But if you're trying to make your way in the blogosphere, it's better to offer an occasional portal to the truly obscure and a lot of original, sound, and hard-hitting analysis. At least, that's what's allowed Crescat Sententia to obtain its tenuous hold.

OK, so here's a question to ponder, one near and dear to my heart at the moment -- just what does the Republican Party think it's doing in Arkansas? That question can be rephrased as, how incompetant can you people be? It can be subtitled as: reasons why my grandmother is a life-long Democrat.

I speak of the 2004 Senate race - who is their candidate? This is a state which voted for Bush last time around (ok, by 51% points). The governor and lieutenant governor are both Republicans, although of moderate stripes. [The Republicans most distasteful to my dear grandmother are the right-wingers. That faction of the party is commonly known as Shiite Republicans. Now repeat that, only with a rural Southern accent.]

The incumbent is freshman Blanche Lincoln. Check her out, she doesn't seem to have many skeletons in her closet. A reputation as one of the nicest people in the Senate (ah, how sweet). Huge driver behind the creation of the Delta Regional Authority, a government flinging of money towards an area to try to alleviate the poverty (I don't care what you think about government intervention, do you think people in Arkansas are going to vote against her for this one?). Consistently votes the agriculture line that people there like. Successfully fought to get the child tax credit extended as a rebate to people below the income level to file taxes. About 3% points more liberal than the mean in the Senate. Why pundits were saying back in May that she faces a tough race, I don't know.

And who are the Republicans running against her, a pro-agriculture, pro-Delta candidate who will speak glowingly of the need to nuture homegrown profitable businesses like J.B. Hunt Trucking, Tyson's Foods, and Wal-Mart? The primary is in May, who is their candidate?

Freshman state representative Jim Hunt might run. uh-huh.

Well, Republican Andy "TV" Lee has declared. This fellow's the former sheriff of Benton County who loves to draw attention to himself. He got rid of hot meals, TV, and the gym in order to cut costs at the prison. He also proudly notes that he had his 10 Commandments posted in the prison before Roy Moore installed his monstrosity of a statue in the courthouse (Lee did obey a judge's order to take the 10 down).

Gunner DeLay will probably also run. He's a former state senator. I have a soft spot in my heart for him for one thing: he's actually strongly pro-labor, both in the bills he sponsored in the state legislature and in his private legal practice. The AFL-CIO endorses this Republican; the big businesses named above (in the same neck of the woods as he comes from) don't. But he's also a classic Republican on social issues. He also can't even manage to win the Republican primary for the 3rd Congressional District, and the party considers him an embarrassment on the national stage. Why? He's so rabidly anti-illegal immigration that it's hard to believe (or convince anyone) that he's not a xenophobe.

Come on, Arkansas State Republican Party, you're not going to let this one go without a fight, are you? True, Gov. Huckabee is going to fill out his term trying to reduce the inequities in the state public schools without leveling down (good luck to him), and Lt. Gov. Win Rockefeller has announced he wants the governorship once Huckabee's term-limited out.

Still, you've got a candidate waiting in the wings -- Asa Hutchinson, Under Secretary of Border & Transportation Security at the DHS. Run him. I don't care if he's says he's got a job to do at Homeland Security, it can always be his fall-back career if he loses. He said he'd run if and only if Bush asked him. Well, what are you waiting for?

This is a candidate who can run on a strong pro-business platform, but while promising to keep the farm subsidies (political suicide if you don't). Wal-Mart and other big businesses love him for watching out that the new security provisions didn't slow down commericial cargo. And while Sen. Lincoln can bring home band-aid pork, he can claim he can get the new bioterrorism research facility located at the arsenal at Pine Bluff (maybe true, maybe not, but hey, it's a campaign promise).

He's also got the born-again, right-to-life vote. That's a demographic that will vote for just about anyone, so long as it's alive and anti-abortion. Lincoln supported the (failed) Feinstein Amendment (exception of health) to the Partial Birth Abortion Ban, even if she did eventually vote for it. And she supports stricter regulations for sales and background checks at gun shows. He just has to take the contrary, states' rights position.

So why is he still hanging out in DC -- where's the pressure upon him to run?

A side theoretical question: why are the Republicans in Arkansas so short on anyone reputable?

[I should note that I don't have any good reason for hoping that the Republicans run a strong candidate -- I want Lincoln to win re-election.]

We're flattered (at least I am). We also hope non Chicago-esque readers are enlightened.

Will the Marlins win?

And should a Chicago Cubs fan want the Marlins to win so that we can at least say "we lost to the winners" and take the sting out of our wounds, or should a Cubs fan want the Marlins to be painfully, gruesomely, soul-wrenchingly crushed by the Yankees out of some immature principle of revenge?

Update;

Answer to the first question is yes. What about the second?

Assuming you don't have to walk by the Saturday Guardian to get to your daily cappucino, you might have missed the following Seamus Heaney/Ted Hughes article in the Guardian.

What do pro-gun-control folks think about target practice, in general principle? Does it make them uncomfortable for all of the reasons that easily available guns do? Any pro-gun-control readers are invited to write in.

From my maths/theory professor, Doctor Rupert Gatti:

Too few people understand the difference between wealthand money.

Well, Matthew Yglesias and I agree on one thing-- the "mainstreamness" of Bush's judges is pretty immaterial. As it happens, he and I disagree about what would make a good judge (personally, I'd take a court made of equal parts Justice Thomas (in my originalist moods) and Justice Kennedy (in my Libertarian ones). I suspect he wouldn't.)

In any case, I think it should be clear to anybody who watched the hearing that Justice Brown (for example!) is to the left of Scalia, Thomas, and Rehnquist. That's almost as mainstream as they get. As Yglesias rightly points out, the New York Times just doesn't like the mainstream. They'd be more convincing if they admitted as much.

1: Trinity needs a Sorting Hat.

2: Okay, so the port wasn't actually from the year of my birth (my year is 1982, the port was 1983), but it was good.

3: It takes a whole lot of guts to wear a kilt to a black-tie dinner.

4: God, my Director of Studies has guts.

There's a story in today's NYT on a recent raid 21-state of illegal immigrants working as contracted janitors at Wal-Mart. Immigration officials rounded up 250 such illegal immigrants. They came from:

Mexico: 90
Czech Republic: 35
Mongolia: 22
Brazil: 20
Uzbekistan, Poland, Russia, Georgia & Lithuania: ~12 a piece

Mongolia? I don't know if this is only a measure of legal emmigration and immigration, but according to the CIA World Factbook, the country's net annual migration is 0 per 1,000 residents, and there are only 2.7 million of them to start with. Granted, people could be moving into Mongolia at the same rate they are moving out, but I'd like to know in what numbers. I don't think I've heard of so many Mongolians in the same place in the US since the Smithsonian Institution's Folklife Festival on the mall a summer ago, when Mongolia was one of the featured countries.

The New York Times has the predictable editorial opposing Justice Janice Brown. I was going to fisk it, but I can't, because so much of what it says is just unproven assertion. A few things to remember:

Justice Brown doesn't praise Lochner. She criticizes Justice Holmes's Lochner dissent, but it isn't the same thing, which she made clear at her hearing. She thinks substantive due process is wrong, but she also thinks that economic regulations should be subjected to the same scrutiny that other regulations are, within the bounds of the text of the Constitution. Of course, after she finished criticizing Lochner, Senator Schumer declared that she defended Lochner. Then she said that Lochner was justly criticized, justly discredited, for using substantive due process to read the political philosophy of its authors into the Constitution. Then somebody declared that she had defended Lochner. It makes you wonder whether people are confused or malicious, sometimes.

Yes, Justice Brown argued that imposing a prior restraint against racial epithets violated the First Amendment. As I recall, her argument in the hearing was that since the court has found prior restraints unacceptable even in the case of national security, that it couldn't do them here either.

As we've covered before, it's not clear how much the rating from the ABA should prove, given that Miguel Estrada had a very well qualified rating from the ABA, and judges like Richard Posner and Alex Kozinski have gotten the same mixed rating as Brown.

But mostly I just can't understand why democrats would want to filibuster her. She seems so much more reasonable, so much more judicially neutral, then many other Bush nominees. I mean, sure, she's made some conservative rulings, but that seems to be a unifying theme among Bush's picks. When she served as an intermediate appellate judge, she only ever penned three dissenting opinions, because-- she says-- she just followed all the laws laid down. I'm pretty sure everybody knows that she'd do that on the D.C. Circuit too.

Now, the only thing I can think of is that Democrats are (rightly) afraid of the thought of her on the Supreme Court, because she'd be a plausible replacement for O'Connor but Brown's jurisprudence would be more dependably originalist than hers. And if that's what they're afraid of, it's understandable that they'll fight her here, where they can still get her, because if she goes onto the DC Circuit she'll rack up a track record of unexceptional unideological opinions that squarely respect precedent and so on.

I don't mind the filibustering of judges so much, I just wish that when one read the New York Times editorial, one got the sense they had watched the hearing, rather than just listening to the Schumer opening statement or the Totenberg summary.

AFTERTHOUGHT:

Oh, and I assume the Democratic Senators don't really care, but it's also worth remembering that if they do filibuster a relatively mainstream conservative judge after she was extremely forthright and helpful at her confirmation hearing, that certainly doesn't set up an incentive for future judicial nominees to be forthright or helpful. Again, presumably Democratic Senators don't mind, because if the nominees aren't forthright they can still use that as an excuse to filibuster them, but I like watching Senate Judiciary Hearings, so I care.

Why has no one ever told me that Pejman Yousefzadeh has the coolest blogroll ever?

...the House hearing on whether to divide the 9th Circuit. You can, too, if you click here.

For a much more representative example of Justice Brown's questioning, I suggest listening to Russell Feingold's eleven minutes with Justice Brown about age discrimination. If you open up this link and move the tracker all the way to the end of the first, 2.5 hour section, it should start the second section, eleven minutes long. I'd really like to type out the whole thing, if I get a chance, but, it's, well, eleven minutes of pretty dense stuff. If anybody happens to find (or type up!) a transcript, let me know. Otherwise, listen to that for a pretty good taste of Justice Brown getting hard questions but giving precise, lawyerly answers.

The Volokh Conspiracy has blog-rolled us.

Southern Conservatives have dumped their comments. Celebrate by sending them an email.

This is how NPR quoted Justice Brown on the Supremacy Clause, which made me wonder if she was some sort of nitwit:

Specter: Well doesn't the Supremacy Clause of the Constitution mean that the Equal Protection of the 14th Amendment trumps California Proposition 209?

Brown: Doesn't the Supremacy Clause mean that?

Specter: Yes.

Brown: Well the U.S. Supreme Court has not said that.

Specter: Well the state cannot have a Constitutional provision that conflicts with a U.S. Constitutional provision, can it?

Brown: This is not an issue I have looked at in detail.

Specter: You invalidated affirmative action which was taken under a statute on the ground that California Proposoition 209 provides that the state shall not grant preferential treatment on the basis of race, sex, color, ethnicity or national origin. But isn't the California Constitution on Proposition 209 subordinate to the Equal Protection Clause of the 14th Amendment so long as there is a compelling state interest and the issue is narrowly tailored to address an identified remedial need?

Brown: Well if you're asking if a state would be precluded from having a higher standard, I don't think so. I mean the U.S. Supreme Court has recognized that prohibition obtains.

Specter: Well doesn't the Supremacy Clause of the Constitution mean that the Equal Protection of the 14th Amendment trumps California Proposition 209?

Brown: Doesn't the Supremacy Clause mean that?

Specter: Yes.

Brown: Well the U.S. Supreme Court has not said that.

Specter: I'm not sure whether they've said it or not, maybe they haven't had it presented. But the state cannot have a Constitutional provision which conflicts with a U.S. Constitutional provision, can it?

Brown: I think that, and I have to admit, that this is not the issue that was before us in that case, and so this is not an issue that I have looked at in detail--

Specter: (interrupting) --You may say that the program was not, did not meet the Equal Protection Clause of a compelling state interest, or wasn't narrowly tailored to address an identifiable remedial need, but I do not think that you can just base the conclusion on Proposition 209 when it conflicts with the Equal Protection Clause.

Brown: Well, since that was not the question that was presented to us, and the question was only whether the program of the city of San Jose violated the CA constition, I just have to say it's not an issue that I've looked at.

Specter: Well, was the San Jose provision addressing a compelling state interest? I'm going back to the 14th Amendment, the question is whether it was addressing a compling state interest and was sufficiently narrowly tailored, because if it satisfies the Equal Protection Clause of the 14th amendment, wouldn't that prevail over Proposition 209?

Brown: I don't know if it would or not, Senator.

Orrin Hatch: Now the Ninth Circuit court of appeals . . . . has ruled, and this is noted in the majority opinion of the Proposition 209 case, that Proposition 209 does not violate the Equal Protection clause. Also federal courts have ruled that that proposition does not violate federal civil rights statutes. Now in your opinion, I would note that you acknowledge the Supremacy Clause would dictate federal law would prevail. If Proposition 209 violated the U.S. Constitution or federal statutes, then literally federal law would prevail. Is that correct?

Justice Brown: Of course.

I'm not sure I actually have many more productive things to say about Smoking Bans. But I would like to offer up a piece of interesting reader mail, and then just sort of aimlessly link to everything that's already been said.

First, the email. Reader Bruce Baugh (who blogs here) writes:

I'm one of those people who is really, really badly affected by smoke, along with a whole lot of other things - I have an immune system that's gone through weak and troublesome into quisling territory when it comes to repelling possible menaces to the well-being of the rest of my body. My reactions to smoke start with nausea and disorientation and can range up to episodes hard to distinguish from petit-mal epileptic seizures. So I have every interest in minimizing my exposure, both cumulative and in terms of the concentration at any particular spot.

It's this second concern that advocates of smoking bans never seem to take into account.

Given that smoking is both addictive and enjoyable, it comes as no surprise to me that people both feel cravings to smoke and the desire to do so, or that they'll look for whatever opportunity they can get to smoke, within the limits of the restrictions affecting where they work.

And I hate the fact that building bans have made essentially every public building more dangerous for me to enter, since I have to budget the physical resources to cope with the cloud of smoke around every entrance. If people could smoke in their offices, or in interior smoke lounges, or whatever, they wouldn't need to go outside for it and leave a residue where it can affect me. Every time another class of facility becomes subject to a ban on smoking within it, there's another class of facility that will become unpleasant and even dangerous for people like me.

I've described this in the past to some anti-smoking activitists who then act as though the solution is more banning. But given the medical realities, all that spreading the zone of prohibition will do is concentrate that much more smoking at the zones' boundaries. The law can't readily change either the benefits or the liabilities of smoking for smokers, any more than it can change the tides. And from time to time I get angry that measures intended to benefit (among others) me actually make public activity that much harder for me.

I normally find Amy's taste in movies extremely good (which is to say "extremely close to mine," but nonetheless I think her entry into the "20 Best Movies" argument deserves a little scattershot critique.

While it's a close call between Fellowship of the Ring and Two Towers as movies the extent to which Two Towers deviates from the underlying text (the elves at Helms Deep, the wimp-i-fying of the Ents, and the damage to Faromir's character) should give this one to Fellowship, Jacob Levy's defense of TT notwithstanding(but see UPDATE).

I'm tentatively willing to excuse the loss of When Harry Met Sally from Amy's list, since it seems to betray a (largely justified) bias against romantic comedies, and it includes Moulin Rouge! (and MR! and WHMS function as substitutes in some odd emotional way).

There is, however, no excuse for the absence of Tom Stoppard's Shakespeare in Love, not even the presence of The Princess Bride.

I'll stop there.

UPDATE: Jacob Levy emails to clarify that he never defended Two Towers as being better than Fellowship, just "not-as-dismayingly-worse-as-people-first-thought". Good.

Originally, this was going to be a post about Janice Rogers Brown. I've just finished listening to about four hours of Senate Confirmation Hearing. But I'm not going to write that post right now, because I'm just too angry to be able to do it.

I have unease about some of the Bush administration's judicial nominees, but Justice Brown is quite impressive, and I can't understand what's going on in Chuck Schumer's head. I think I'd better get some lunch now.

I picked on Ampersand's last series of posts on workplace gender discrimination, so it's only fair that I point out that his newest series on partial-birth abortion has started out with a spot-on analysis of why Republicans want their ban to be struck down by the Supreme Court.

And I have to say that while I am no fan of late-term abortions, I just don't understand the purpose of banning one particular procedure because it scores high on the gross-out meter. I mean, a dead fetus is a dead fetus, no matter how it was killed. Right?

I realize I'm something of a Johnny-come-lately to the Volokh Conspiracy Darwin fish debate, but nevertheless, I want to go back and object to this statement by David Bernstein:

I've received quite a few emails about the Darwin Fish, mostly to the effect that it takes a sacred Christian symbol and profanes it, and how would I like it if someone took a sacred Jewish symbol and profaned it. I don't quite see it that way. The way I understand it, putting a Jesus fish on one's car is a public expression of religious faith. I emphasize the word public, because I think such public expressions, by there very nature, are meant to admonish non-believers that they should be believers--otherwise, what's the point of putting one's faith out there in the public domain?

Now, if Christianity were some sort of Ponzi scheme, it might be logical to say that all public displays of faith are meant to be prostletyzing. But Christianity also includes a moral system, a community of believers, and an obligation to confess one's faith before God and men. By displaying the fish symbol, a Christians say something about their moral code, identify themselves to like-minded individuals, proclaim their group alleigance, and discharge a Biblical obligation--all of which are only very tangentially related to converting others.

Incidentally, I learned that the fish symbol arose as a way for members of the early church to covertly proclaim their identity to fellow church members without arousing the suspicion of persecuting authorities. It's historical origins are about as far from prostletyzing as one could get. And as to how precisely a stylized fish is supposed to be a convincing argument for Christianity is entirely beyond me.

This is not to say that I think the fish symbol isn't appropriate fodder for the sort of mocking Jacob Levy defends, merely that one cannot get around the fact that parodying it is offensive by describing it as a public act of persuasion.

Roger Simon and Dan Drezner are arguing about whether or not movies of the last twenty years are by and large inferior products.

I've only seen fourteen of Drezner's picks, and twelve of Simon's, but while I would put seven of Simon's choices on my list of best films (if one allows for substitution in the Hitchcock and Wilder director categories--Notorious and Sunset Boulevard for The Lady Vanishes and Double Indemnity), only two of Drezner's picks and one of his alternates would make it on my top twenty list.

Nevertheless, I don't agree that movies have generally declined in the past twenty years. Granted, some once-popular generes (such as the musical and the western) have all but disappeared but others (such as action and sci-fi) have come to maturity. Meanwhile, movies have become almost uniformly better-looking in the past twenty years. One can compare Ben Hur and Gladiator--both mediocre epics set in ancient Rome--but where the first features stiff camerawork and stagey sets, the second is more notable for how much the stunning recreation of Rome doesn't look like a stunning recreation of Rome. Meanwhile, films such as Amelie, Moulin Rouge! and (yes) The Matrix show that computer effects can be used not just to make bigger and better explosions, but also to create serious screen art.

All art is reflective of the era in which it is produced, but for some reason, this truism seems even truer in regard to movies. Films such as Say Anything, or Clueless for my generation, speak strongly to their contemporaries, but seem quaint and incomprehensible to an audience coming along five or ten years later (or an audience that came of age five or ten years earlier). This isn't a particularly new development--if you're under forty, try watching something from Doris Day's oeuvre, and at best you'll find it cute. At worst, changing culture will have made it downright offensive.

But when thinking about films from forty or fifty years ago, Doris Day and Rock Hudson aren't what we remember, because Doris Day and Rock Hudson are no longer what we watch. These movies speak to a cultural moment that no longer exists, and so have been rightfully forgotten. But when watching films from ten or twenty years ago, it's much harder to tell what we like because it speaks to our particular cultural neuroses, and what we like because it speaks to us as human beings and art lovers.

And for those who are interested, here's my list of the twenty greatest films of all time, in no particular order

1. The Godfather - Francis Ford Coppola (No explanation necessary)
2. Sunset Boulevard - Billy Wilder (Movies about movie stars usually suck. This one doesn't.)
3. Mulholland Drive - David Lynch (Ditto Dan on the most erotic love scene filmed in the past twenty years.)
4. The Silence of the Lambs - Jonathan Demme (Conrad may have coined the phrase "fascination of the abomination" but Hannibal Lector embodies it much more richly than Mr. Kurtz.)
5. The Princess Bride - Rob Reiner (How many other movies are worth memorizing in their entirety?)
6. Casablanca - Michael Curtiz (Another no-brainer.)
7. Notorious - Alfred Hitchcock (The perfect suspense thriller, and the camera work is Hitchcock's best.)
8. Singin' in the Rain - Stanley Donen/Gene Kelly (Not the best music, but some of the best dancing ever filmed.)
9. Lawrence of Arabia - Sir David Lean (Watching Peter O'Toole twirl around in his new desert robes is one of the great moments of cinematic history.)
10. Bringing Up Baby - Howard Hawks (It's really a toss-up between this and Arsenic and Old Lace for best screwball comedy)
11. It Happened One Night - Frank Capra (Clark Gable was forced to make this film by his studio, but he and Claudette Colbert are the quintissential romantic comedy couple.)
12. Moulin Rouge! - Baz Lurhman (A demonstration of More's Law--if some is good, more is better--in action. The results are stunning.)
13. Indochine - Regis Wargnier (Historical melodrama at its best.)
14. Trois Couleurs: Blanc - Krzysztof Kieslowski (Tough to pick one of the trilogy but this one is, I think, the most haunting.)
15. Metropolitan - Whit Stillman (Again, tough to pick one of his Yuppies in Love trilogy.)
16. Being John Malkovich - Spike Jonze (Hilarious, weird, and oddly touching.)
17. Dr. Strangelove, or How I Learned to Stop Worrying and Love the Bomb - Stanley Kubrick (Best anti-war movie ever.)
18. The Talented Mr. Ripley - Anthony Minghella (One of the few movie adaptations to surpass the book upon which it was based.)
19. Lord of the Rings: The Two Towers - Peter Jackson (Hard to pick the best of the trilogy when the third one hasn't come out.)
20. Dirty Pretty Things - Stephen Frears (My pick for best movie of 2003, though it may not stand the test of time. Absolutely gut-wrenching.)

Well, the midnight hour approaches and so ends my guest tenure. I'd like to thank Will and everyone here at Crescat Sententia for letting me post and I'd like to thank everyone who sent me emails. I'm sorry I haven't been able to respond to all of them. I've had a blast at the ball, but alas, my blogging coach now turns back into a pumpkin. If you enjoyed my posts, I hope you'll come visit me at reg rats.

If you happen to have a spare $30,000, you can buy your child this toy and if that hasn't broken the bank, perhaps you can toss in $20 grand for this. Or you could buy about three real cars for yourself...

While giving a quick check to see how the New Orleans Times-Picayune was covering the Louisiana gubernatorial race, I came across this interview from last Friday with former four-term governor Edwin W. Edwards, EWE to the newspaper headlings and "the crook" to everyone else:

Edwards Unbowed, Unbroken
"Had he decided to run and were he not serving a 10-year prison term for fraud and racketeering, former Gov. Edwin Edwards believes he would surely trounce the two candidates vying for the governorship.

"'If I had run for governor with the group that is running today, I would have ended up winning,' Edwards said, brandishing his trademark confidence in an interview with CBS News that aired Thursday.

"Edwards made the comments during a jailhouse interview that aired just five days before he completes his first year in a federal prison in Fort Worth, Texas.

"Asked if he still professes his innocence, Edwards replied: "I never would say I was innocent of everything. I simply say I was not guilty of what I was charged with." He was convicted in May 2000 of corrupting the riverboat casino licensing process."

Neither Blanco nor Jindal's staff had any statement in response to Edwards's claim.

Ah, Edwards, others may be more honest than you, but they lack your panache. And your other, successfully avoided in the 3rd term, indictments for mail fraud, obstruction of justice, and bribery for sales of hospital certificates. And your deals with Eddie DeBartolo (owner of the San Francisco 49ers until things got shady). You're missed by those of us who read the newspaper but no longer live in the state.

Sorry, Will, I can't take any credit for Judge Posner agreeing to answer Howard Bashman's 20 Questions. Still very cool, I look forward to it.

But dang it, I'd hoped with enough time and great answers to the 20 Q like we've been getting, Crescat would be able to get the Judge. Now I guess we'll have to get the scoop on How Appealing by getting a Supreme -- Bashman's, after all, are for the appellate judge. To the SC: Hello out there if you or any of your clerks are reading, we'd love to have you. Hey, I can dream, can't I?

Sara Butler thinks Jacob Levy and I are coming out too strongly in favor of mockery, though I suspect it hurts every bone in her anti-gender-studies body to do so. But I think mockery is a great part of discourse-- especially religious discourse, but not only. Mocking laughter can be the last refuge of overwhelmed minorities, the first volley of assault on orthodoxy, and any number of things in between. Lest I seem over the top, I'll explain.

Take, for example, a mockery near and dear to my heart: the parody-blog Assprat Pretentia. As many other bloggers have noted to me, the whole enterprise is pretty cruel and pretty dreadful-- mockery at its lowest common denominator. On the other hand, it's flattering that anybody thinks this blog is worth mocking. Mockery is part of taking things seriously. People mock Catholicism all the time. They mock Wicca much less.

Is "Assprat" largely mocking for his/her own sake? I have no idea. But I know that I'm pretentious at my best and condescending at my worst. Having people like Assprat mock me in the blogosphere, and having some other people (you lived in Broadview Hall, and you know who you are) mock me in the real world helps keep me on guard, and hopefully keeps me closer to pretension than to condescension. So regardless of the intent of the mocker, this mockee takes that mockery to heart.

As an example of "mockery . . . done for the benefit of observers rather than the mockee" Sara offers up my summertime post on how not to give a policy presentation to your peers. It's not a perfect example of the kind of mockery that Professor Levy was defending, because it might cross the line between mocking a person and mocking their beliefs. But I don't think so. Making fun of somebody because they are condescending, are inconsiderate, or wear sandals with a suit to a formal presentation (for example) is different (and better) than making fun of them because they have a big nose, dark skin, or red hair. Indeed (and this is a key point) making fun of somebody doesn't preclude liking them, and it might not even preclude respecting them.

In particular, as Professor Levy points out, mockery has a special role to play in religion. Thanks to the role of faith, logical analysis is crippled in discussions of religion. If you decide to take the word of the Bible, Koran, or Torah on faith, then mockery is one of the only tools the non-believer has left. If you think something is just silly and illogical, all that you can really do is point out that it's silly and illogical, and mockery is usually the most literarily compelling way to do that.

For a more complicated discussion of this and related issues, particularly the relationship between humor and morality, read Ted Cohen's book on Jokes. If Aristotle's "Comedy" weren't lost to the world, it might say the same thing.

Mockery is important because it gives a feeling of solidarity among the aggreived, because it's often an effective way to draw attention to a left-field attack on an established tradition, and importantly, because mockery is often true. Sometimes people make assertions so silly that a logical reply just seems inappropriate. Mockery is often our way of saying that the gulf is so wide that we haven't yet gotten to the classroom or debating table. It's worth remembering that we once settled these disputes with swords instead. (And as I listen to her hearing, Justice Janice Rogers Brown has just announced that she's going to take the semi-racist cartoon that mocks her as an "unwitting compliment to me" rather than focusing on its "vicious motivations".)

But all of this rambling somewhat ignores Sara's punch line, a question:

...is mockery really an effective means? Having my beliefs mocked has never led me to give any of them up. People who are mocked, it would seem to me, rather than becoming more reflective about their beliefs are probably just going to dig in their heels and stop listening to you. Mockery and derision are far more likely to poison than spark any sort of reasoned exchange in that it automatically makes one person feel defensive.

Richard Posner, Amanda's boss and formerly mine, has just agreed to answer some questions for Howard Bashman (and if we're lucky, Howard Bashman will soon be answering some questions for us). Amanda, is The Judge's participation your doing?

Professor Stephen Bainbridge e-mailed me his excellent post on smoking bans and private property rights. Here's a taste:

Externalities sometimes justify government intervention. If I run a factory that spews pollution into the air, the damage to my neighbors and the environment is part of the overall social cost of running my factory. Because I don't bear those costs, however, I have no incentive to reduce the pollution my factory generates. By adopting appropriate regulations, the government can force me to internalize the cost of pollution, which is a fancy way of saying that the government can force me to take those costs into account when I make decisions.

The mere existence of an externality does not justify legislation, however. In a free society, with limited government and respect for private property rights, at least two conditions must be satisfied before government intervention is warranted. First, my actions must in fact produce external costs. Second, there must be a market failure -- that is, people must be unable to solve the problem without government help.

Read it all.

UPDATE:

Professor Bainbridge responds to a question of mine here.

I, like Will, found myself largely in agreement with Sasha Volokh's rebuttal to Dahlia Lithwick's argument against the right to (badly) represent oneself in court. But at the risk of endangering my libertarian credentials, let me pick at the bold assertion at the heart of Volokh's argument: "... a right is no right at all if it can't be waived; a non-waivable right to life is a duty or a burden, not a right." Is this really true? Are inalienable rights simply incoherent?

I'm not so sure, and I think the answer is rather sensitive to how you define rights. My own broadly consequentialist view is that my right to X makes claims on people--place duties on them--in order to institutionally safeguard a vital interest I have in X. Now, typically these duties and claims (don't hit me, don't take my stuff) are directed against other people; it doesn't serve much use for me to be under a duty not to take my own stuff, and if I choose to inflict injury on myself, well, I probably have some reason for it.

But is it necessarily true that a right can never make claims against, or impose duties on, the right-holder herself? I don't think this follows, at least not if one takes the instrumentalist view I'm putting forth here. If what matters is protecting the vital interest at the heart of X, we need to know about what the relevant threats to X are before we can so easily dismiss the possibility of an inalienable right to X.

Let's take voting rights, for example. Now, the right to vote can be grounded in any number of possible justifications, but let's just look at the obvious one: the citizen's desire to have his interests represented. We're trying to decide whether or not a citizen's right to vote should come with duties attached on its use--ought you be permitted, for example, to sell your vote in exchange for a bribe? Most people would say no--that if vote-selling were allowed, the resulting equilibrium outcome would be against the interests of the vote-sellers (voting has a low private return but (comparatively) large externalities; assuming the poor are numerous and share some basic interests, each vote sold to the rich has negative externalities for the fellow-poor which are not captured in the selling price; the poor would be facing essentially a n-person prisoner's dilemma).

This argument can be generalized: if one is allowed to waive one's right to X, others will have an incentive to put you in bad positions--positions so bad that you will then choose to give up X in order to escape them. If you can't give up X--if we place the duty on you to keep it--no such incentive will exist. Now, we can perhaps avoid this by giving you a right that others not put you in such bad positions, but in practice this just isn't workable--there are just too many ways to put pressure on people for a legal regime based on "no crime without a law against it" to handle. This is, for example, the knock-down reason in favor of maintaining a non-waivable right to protection from parent-child incest: if children were allowed to waive it, abusive parents would quickly learn that all legal incest takes is clever agenda-setting. ("Daddy, I won't have sex with you." "If you don't, I'll divorce Mommy. And not pay for your education. And hate you forever." "Fine, I consent.") Are we really willing to say that inalienability makes the right to be free from parent-child sex incoherent?

None of which should be taken as evidence against the substantive conclusions in Volokh's piece--I don't really see serious strategic interaction problems with alienability of one's right to legal counsel. But as a general rule, when thinking about rights, such considerations can't be ruled out.

The medical term for the procedure referred to as partial birth abortion is intact dilatation and extraction. The American Medical Association describes intact D&X as:

...comprised of the following elements: deliberate dilatation of the cervix, usually over a sequence of days; instrumental or manual conversion of the fetus to a footling breech; breech extraction of the body excepting the head; and partial evacuation of the intracranial contents of the fetus to effect vaginal delivery of a dead but otherwise intact fetus.

Though the AMA concedes that it isn't the only medically appropriate abortion procedure and doesn't recommend its use unless "alternative procedures pose materially greater risk to the woman," it also states that "the physician must, however, retain the discretion to make that judgment, acting within standards of good medical practice and in the best interest of the patient."

The future physician in me thinks that physician discretion is an important issue not just because different techniques pose different risks to different women but also because physicians, like other practitioners of techniques, have varying degrees of comfort with their repertoire of skills. Though one physician may prefer a certain method and feel that it is medically indicated, another physician may be more comfortable with another method and his increased competency might affect the health outcome of the patient. Artificially limiting physician discretion through government regulation makes for bad medicine.

You can now access the video for the Senate Judiciary Committee's hearing on Janet Rogers Brown here. It's two and a half hours long, so I may not get a chance to listen to it until tonight (which would be late afternoon for you states-bound folk), at which point I'll attempt to resolve whether she's really as . . . confused as NPR made her sound.

As you've probably hears, the Senate passed a partial birth abortion ban. I can't tell whether they didn't include a health exception because they thought they could get Sandra Day O'Connor to vote for it anyway, because they thought O'Connor would be gone and replaced by a pro-life nominee before the bill made it to her, or because they didn't actually care whether the bill survived or not but wanted to engage in political signalling to pro-life or moderately anti-abortion constituents. (And of course, don't rule out the possibility that the bill could have the paradoxical effect of hurting anti-abortion jurisprudence. O'Connor could decide that it's worth sticking around longer to get a chance to save her decision in Sternberg v. Carhart, and if a democratic presidential candidate beats Bush, there's a non-trivial chance that either O'Connor or Rehnquist will retire before a Republican wins again. Still, I don't think it's likely that the ability to vote on a single case will make the difference in O'Connor's decision about when to retire, expecially since Roe is safe even without her vote.) Also, don't miss the possibility that the ban will fail on enumerated powers grounds. I'm actually not at all sure what enumerated power the bill is based on. Commerce Clause? 14th Amendment?

And, luckily, William Saletan writes in Slate to remind us that partial-birth abortions aren't really births. They're abortions.

I'm no fan of second-trimester abortions. They're horrible, and if you can avoid having one, you should. They can be particularly disturbing when they're done by extracting the fetus intact, in a manner that looks like birth. But they aren't births. (Read on)

Vice Squad's Jim Leitzel replies to Beth's and Sasha Volokh's thoughts on smoking bans. He basically comes down with us Libertarian-types, but makes the (fair) point that the biggest losers from second-hand smoke in the workplace are the people who work there rather than the customers (never mind that at some of the pubs around here there are customers who spend more time in the place than any of the employees do).

I appreciate the concern, and to the extent that such smoke limitations are in line with all the other worker health-and-safety stuff we already mandate, I suppose it makes some sense. Still, one starts to wonder . . .

Given that some people find smoke a great nuisance (or even a great health hazard, as we've discussed) while other people don't mind it at all, and some people find smoke a plus (these being the people who would like to be smoking), it seems like there's a market-based solution. Wouldn't we expect some businesses to allow employee smoking (while on the job), then specialize in hiring smokers, while other businesses disallow employee smoking and specialize in hiring anti-smokers? Those workers who are more flexible (willing to work with or without the smoke) could reap the tiny benefit of extra job flexibility, just as workers who are indiffierent to what hours they work have more options available to them by working night or days as available?

I don't mean to sound a call against all workplace regulations. Despite my strong Libertarian sympathies I understand that there were strong reasons to think about things like bans on child labor, or regulations on the amount of terrible toxins you can put into sausage, (though I'm still very skeptical about things like a maximum work week). But smoking, as I've noted before, is different from a lot of workplace hazards in that for a lot of people it's not a workplace hazard but a workplace benefit. Now, I don't smoke, but I think the rush to save non-smokers from the perils of voluntarily exposing ourselves to people who do smoke probably undervalues (drastically) the consumption benefit of cigarettes. Clearly it's good to have some jobs, restaurants, etc. that aren't clouded by tobacco smoke, but it's also important to have some where people can spew smoke freely.

I have a hunch that a market-based solution is more likely to accomplish that than a smoking ban. Maybe I'm wrong.

Those interested in catcalls (see Beth's post immediately below) are also directed towards Amy's post on catcalls from April (before she'd joined us over here; before there even was an over here for here to join), and the 4/16/03 post at Blue Light Reflections (since I can't find the permalink button).

I think that Will's protocol for acceptable tune-whistling is right on-target and I would like to comment on whistling conduct of an entirely different nature: the two-toned catcall.

I've spoken to a lot of women who have been subjects of this behavior and their responses have surprisingly ranged from flattery to fear. I find that it almost exclusively happens to me when jogging past construction sites and that my reaction varies with the construction site. For example, while passing Henry Crown Field House, the whistle evoked little more than passing disdain in me. Though I sneered and huffed a signal of displeasure at the untoward behavior, I did not feel threatened or greatly offended. However, my reaction was quite different when it occurred while jogging past a remote construction site in suburban Ohio. There, I was actually quite scared knowing that there was no one around to deter a situation should one arise. I immediately changed my path and quickened my pace until I reached a busier road. The threat to me in both situations was probably nil but while the first scenario was just a nuisance, it was downright menacing to hear that same whistle in the more remote area.

My suggestion is thus: the two-toned catcall is never appropriate. I'm certain that those concerned with etiquette would never engage in such an indecorous act but those who do probably don't realize how menacing it can be. Many offenders and their targets may consider it a harmless complement from afar but regardless of intent, it can be quite disturbing.

Will lists his favorites, which earn him acclaim from the educated, libertarian kind of folk.

Good, but doesn't beat my two favorites (and for others who appreciate Southern drug-humor puns):

In my sister's room (not on her car, she's only at the learner's permit age):
HOOKED ON QUACK.

In a similiar vein, QUACK KILLS.

What is this Quack of which I speak? Why, premium quality duck hunting calls, of course. You can pick it up at Mack's Prairie Wings in Stuttgart, AR, home of the World's Championship Duck Calling Contest. Even cooler, though, are the shotgun shell Christmas tree lights which are hanging over the door to my room.

I should also plug the Car Talk bumper sticker that I have a habit of giving people (none of whom heed it or put it on their car, but that's another story): DRIVE NOW, TALK LATER.
[Enough's enough with the procrastination and the parenthetical comments, just because the paper you're avoiding is on Arkansas politics doesn't mean this is how you should spend your time. -- Love, your inner conscience]

(Via my father, and How Appealling). So what on earth is Justice Janice Rogers Brown doing? Arlen Specter tosses her an easy question, and she doesn't even answer it. (You can listen to the excerpt on All Things Considered here with Realplayer)

Senator Specter asked her "Well doesn't the supremacy clause of the Constitution mean that the Equal Protection of the Fourteenth Amendment trumps California Proposition 209?"

Brown: (clarifying) "Doesn't the Supremacy Clause mean that?"

Specter: "Yes."

Brown: "Well the US Supreme Court has not said that."

Specter: "Well, the state cannot have a constitutional provision that conflicts with a U.S. Constitutional provision, can it?"

Brown: "This is not an issue that I have looked at in detail."

Excuse me? Now, I have a lot of sympathy for nominees who want to avoid answering tough questions, and I think not enough judicial nominees take a tough line with the Senators. "Look, Senator, I don't know for sure how I'll rule with respect to Roe v. Wade, and even if I did know, I wouldn't tell you." All the same, this wasn't even a hard question. Yes, of course the Supremacy Clause means that a state can't abrogate a constitutional right. What was at issue in the case of Proposition 209 was not whether the California Proposition could beat the U.S. Constitution; the question was whether the Proposition did conflict. It didn't. Judge O'Scannlain explained why:

The first step in determining whether a law violates the Equal Protection Clause is to identify the classification that it draws. Proposition 209 provides that the State of California shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race or gender. Rather than classifying individuals by race or gender, Proposition 209 prohibits the State from classifying individuals by race or gender. A law that prohibits the State from classifying individuals by race or gender a fortiori does not classify individuals by race or gender. Proposition 209's ban on race and gender preferences, as a matter of law and logic, does not violate the Equal Protection Clause in any conventional sense.

Sometimes somebody writes something so jaw-droppingly brilliant that you can only muster up a combination of "I wish I'd thought of that," and "maybe I did think of that. Did I think of that?" Jacob Levy seems to come up with a disproportionate number of such jaw-droppingly brilliant things. His post on why mocking religion means taking it seriously is one such. Go read it.

A punchline:

...Mocking the belief while respecting the believer is no more a paradox than hating the sin and loving the sinner, and indeed rests on the same underlying thought-- that one's fellow humans aren't to be treated with kid gloves at the cost of denying them access to the truth.... (read the whole thing)

U2 are almost ready with their new album, and more importantly, ready to start touring for big audiences again. I have rather complicated emotional feelings about their last album, but this is clearly good news.

The group-blog trend continues, with En Banc, a cleverly-titled, law-blog. This blog is particularly worth your attention because it assimilates a lot of other good bloggers. It's got PG, from Half The Sins of Mankind, Unlearned Hand, Jeremy Blachman, Greg Goelzhauser from the Law and Economics Blog, and some other folks who I'm sure are very sharp, although I'm not yet familiar with their blogs. They've even declared us a role-model.

The biggest problem so far is that the blog has comments.

UPDATE:

Dan Moore asks:

I'm sorry, Will, but what exactly is wrong with blogs having comments? Is trackback okay?

James Lileks thinks that whistling is "auditory onanism":

I whistle the guitar parts. That’s not good. I’m a good whistler, but still: no one wants to hear anyone else whistle. It’s auditory onanism.

Of course, as a confessed whistler, I certainly have a stake in this inquiry. Make no mistake about that. Still, the initial analysis from first principles doesn't seem promising. Whistling is, after all, music. It's often not even particularly good music. The etiquette rule about music is generally that one isn't supposed to subject the unwilling to one's own musical tastes. This rule takes on special force when one is also producing the music in question, since it's easier to ask "could you turn that down? I'd like to be able to hear you better," than it is to ask, "could you stop making that racket? I'd like to be able to hear you worse." This doesn't bode well for whistlers.

On the other hand, there's hope. Smoking, after all, is also intrusive but self-gratifying behavior, but etiquette has found ways to cope with that (though not well enough to keep the law from blundering its way in). And whistling also bears serious resemblance to smoking-- it's an "onanistic" behavior that gives pleasure to one but annoyance to many others, but not all others. It's a behavior that only a select portion of the population engages in-- some people because they're physically inhibited from it, and others because they just don't like to. And a man in a trenchcoat and fedora leaning against a building waiting for somebody needs to be either whistling or smoking.

Indeed, whistling's historical pedigree surely must hold out some hope to the committed whistler. Think of Robin Williams whistling his way about the courtyard in The Dead Poet's Society, or King Arthur's subjects in Camelot, to say nothing of Lauren Bacall ("Just put your lips together and blow."). Can etiquette so callously turn its back on our history and tradition?

So, having concluded that the analysis from first principles leaves with a case that is at least "close," we turn to published authority-- Miss Manners. In a 6/26/88 column, Miss Manners dispatches with a special case of our inquiry in a way that bodes badly for whistlers:

Q: We are a group of women who play cards weekly. In the middle of a game, one of the women begins to whistle. I find this disturbing and ill-mannered. When I mentioned this, I was told that there is nothing wrong about a woman whistling.

A: Traditionally, whistling during card games is not a matter of gender so much as survival. Miss Manners prefers that such people be silenced with a glare, but has heard of its being done with a bullet.

Q. I have been informed that whistling is unladylike. While I realize that it is never polite to annoy one's neighbor, would Miss Manners be so kind as to tell me how this gender distinction came about, and whether it is still in effect? I will cease at a word from Miss Manners.

A. Then how would you get Miss Manners a taxicab when she needs one?
While it is true that whistling is unladylike most of the time, it is also true, although your informant neglected to tell you, that it is ungentlemanly at such times.

People of either gender may skip happily along a country road whistling, but neither may whistle in a bus or a theatrical dressing room.

The principle is that people who enjoy themselves in potentially intrusive ways ought to restrain themselves -- preferably without being asked, but most certainly if they are (politely) asked -- in the presence of those on whom such activities have an unpleasant effect. Is that a sufficiently non-provocative way of putting it?

It is not that we want to spoil anybody's fun -- only that we want to take reasonable precautions against spoiling the pleasure of others. (That neither of these statements is true does not disturb Miss Manners; decent people must act as if they were.) It is not an even contest: The wish not to be disturbed has precedence over the desire to do something generally recognized as disturbing.
In a society that has emphasized individual rights at the expense of community preferences, the idea that one shouldn't exercise one's right to annoy people is a hard-won principle. It ought to be more widely applied, and noise would be a good place to start.

There is nothing inherently wrong in talking, laughing, playing music, playing really loud music, snapping chewing gum, whistling, whispering or receiving telephone calls, but there are wrong places to do each of these things, and people should not have to bop one another on the head to establish where they are.

Well, since everybody else is recounting bumper/fender stickers, I thought I'd offer up a few of my own favorites. [Note, this list will necessarily be made more esoteric by the fact that I'm listing only stickers I own, even though I've never owned a car on which to stick them.]

If guns are outlawed, can we use swords?

God was my co-pilot, but we crash-landed in the Andes and I had to eat him.

I'm not nearly as think as you confused I am!

Everything I need to know I learned in sniper school.

Duct tape is like the force; it has a light side and a dark side and binds the universe together.

Incidentally, if you're ready to stop reading about Gregg Easterbrook, anti-semitism, et.al., make this Jeremy Reff post the last thing you read about it.

Hum. I woke up this morning, and read this piece by Dahlia Lithwick and told myself I'd write a response as soon as I got back from class. But when I returned and poked around the blogopshere a bit, I noticed that Sasha Volokh had beaten me to it. He writes, for example:

If we want defendants to have counsel because we want to help them, then we should let them define their own interests, and not assume that being freed (or living) is better than being imprisoned (or executed) after having put up what you thought was a dignified fight, with the friends you want and using your own arguments. (Read the whole thing)

Thus, the odd result that the test for baseline competence includes the inquiry of whether you are sufficiently together to assist your counsel. If you are, you are somehow competent enough to fire her.

In the long history of British criminal jurisprudence, there was only one tribunal that ever adopted a practice of forcing counsel upon an unwilling defendant in a criminal proceeding. The tribunal was the Star Chamber.

Yesterday over at the Volokh Conspiracy there was a lot of talk about bumper stickers. My only bumper sticker is from the greatest tourist attraction in all of Florida, Monkey Jungle, "where the humans are caged and the monkeys run wild." Though it isn't exactly a model of responsible animal husbandry (it started out with six monkeys that proliferated into 80-something), it is a fantastic place to visit (and not just because a monkey urinated on my sister). Highlights of Monkey Jungle include sanctioned feeding of the monkeys and the Wild Monkey Swimming Pool. It is a definite must-see if you are in the Miami area.

Well, Instapundit is down but up, Pejmanesque is down but up, but near as I can tell Daniel Drezner is just down.

Incidentally, if anybody has an email address for Pejman Yousefzadeh could you please send it to me? Thanks.

UPDATE: They're back . . . .

Sasha Volokh, a non-smoking Volokh Conspirator, is frustrated with smoking bans in "public" places. I put public inside quotation marks because a lot of the places in which the bans apply are privately owned and operated but are open to the public, like restaurants and bars. Now being someone to whom smoke isn't merely an annoyance to breathing but a debilitating hindrance (i.e. the slightest hint of smoke in the air sends my trachea into spasms, preventing me from breathing at all), I have a special interest in the subject.

In truly public places, like government buildings, public parks, and public school buildings and grounds (including those of public universities), and even public sidewalks and streets, I'm siding with regulation. We all pay taxes to keep these places afloat and regulation of behavior that is physically harmful to others isn't inappropriate. A person's personal freedom to swing his fists wildly in the air is subordinated to my right to not be socked in the jaw. Similarly, I don't think it's unreasonable to demand a person's freedom to enjoy a cigarrette on the steps of an Ohio State University building to be trumped by my freedom to breathe at all. Now you may be thinking, "It isn't right to ban people from swinging their fists in public places just because they might sock someone in the jaw. We should only make it illegal to sock someone in the jaw." The effects of public smoking, though, aren't as localized as swinging fists. Smoke not only lingers in the air, it spreads to encompass a large volume of air and, in public, people are more likely than not to have to breathe it in.

As for privately owned "public" places like restaurants and bars, as much as I'd like to see them all go smoke free, I'm going to have to side with Volokh. Bans for public health reasons are truly tempting: not just because of harm to second-hand smokers, but because of the incredible public expenditure on treating them (CDC puts health care costs of smoking around $80 billion/year - I'm not sure how much of this is for second-hand smokers). As expensive and harmful and obnoxious to us as it is, what people do in private is their own business. Though it's not just for us to have to pay for the consequences of people smoking in private, the answer isn't the injustice of banning their private habit. As a consumer, I'm free to choose the restaurants I frequent and I like rewarding those without smoking sections with my business. I'm also free to choose where I work. Private "public" places should be treated differently than the truly public ones.

Tim Sandefur is plugging away at one of my pet causes, laws that ban interstate wine shipments.

Oh, and congratulations to Mr. Sandefur for being blog-rolled by The Volokh Conspiracy. Now if only some bit of that fame could trickle down to us . . .

Although Beth has taken on the role as lead-FDA blogger, I thought I'd chime in with a few thoughts.

One: The problem of "perceived risk" and "actual risk" is a very serious one for those of us who aspire to some vaguely utilitarian democratic governance. Ask people what their biggest health fears are, and you get all sorts of very odd answers. In class we learned this as the "nuclear waste v. radon" problem (the problem being that radon is a bigger threat to most people than nuclear waste is, but most people are far more interested in doing something about the former).

Two: Enter the big bad hobgoblin of the federal regulatory state, Interest Group Theory. Beth's reader says that people are bad at assessing risks. This is true. But it's an open question whether want to trust the FDA to judge them for us. After all, since we don't know enough to judge the risks ourselves, we also don't know enough to know whether the FDA is judging the risks honestly. Add to that problem the fact that many workers can make far more in the private sector than on a government payscale, and you get the revolving-door interest group problem (somewhat hampered, but not entirely, by certain employment rules). I go to work for the FDA for a little while, but I'll eventually come looking to get a job at Merck. That gives me some incentive to be a little bit nicer to Merck applications and what have you.

The solution, I think, is to lower the stakes of FDA approval. Keep the FDA in business and well-funded, keep trying to ferret out interest group corruption and all the rest, but limit the FDA's ability to proscribe new drugs or treatments. Instead, let them issue ABA-style "approved/disapproved" warnings and long, long reports, and let them mark some drugs "prescription only," if they wish, but let medical doctors prescribe drugs that fail FDA review, or that simply haven't made it through the FDA pipeline yet. That reduces the need for drug companies to engage in rent-seeking behavior, reduces the ability of FDA approvers to extract mega-rents from pharmaceutical companies, increases the discretion and flexibility available to doctors, and increases the chance that people in really dire straits can take the desperate risks that they might need to in order to live.

Remember the words of Richard Thaler:

When you are likely to win, don't take chances. When you are likely to lose, take some risks!

A reader responds to my Pharmaceutical Market Access Act post:

Cutting back on the red-tape of the FDA is a bad thing (I believe). People tend to be very bad at judging risk when they lack the understanding of those risks. Organizations like the FDA and OSHA exist to counteract that inability to judge risk. Could it be possible for people to independently judge the risk and efficacy of new (or old) drugs? I say no. As an example of why not, I pose: why do people feel safer driving in a car than flying in an airplane? The data shows that flying in a plane is far safer, and in the 1950s, the US Air Force was the first group to lobby for seat belts when their own data showed that car accidents killed more pilots than plane crashes.

Sure people may be bad at judging risk, especially when the situation calls for a specialized education. But does that mean we need to be paternalistic to those who should be capable of such judgments? By law, an ordinary person isn't deemed competent to judge certain medical risks for himself: that's why some drugs require a physician's prescription. The physician, however, damned well better be competent enough to assess the risks to the patient and make a recommendation. Just because drugs clear the FDA doesn't mean they are through with clinical testing. Physicians and other scientists constantly test the efficacy and safety of new and old drugs for their intended and off-label uses. That's the lifeblood of medical research and innovation. Passing the FDA also doesn't necessarily mean that the drug is safe. The latest research into hormone replacement therapy should teach us that lesson. Regular folks like you and me may believe that driving is safer than flying but the experts at the Air Force know better. The same is true with prescription drugs: a patient may think a certain drug is medically indicated but his doctor isn't going to prescribe it if he doesn't have grounds to believe that it will help.

Also, while the FDA is busy tying red tape around new prescription pharmaceuticals, it isn't regulating some really dangerous drugs that people can buy at their local health food stores: herbal supplements. These drugs, because they are considered "natural" don't have to meet stringent guidelines for safety. Manufacturers can basically put any "natural" substance they want into a bottle, make any kind of claim they want, and sell it. People buy these supplements and vitamins not knowing that they could negatively interact with other drugs they take or could be completely unsafe in themselves. For example, one woman purchased a bottle of a substance that claimed to increase metabolism and ended up requiring a liver transplant. The article is from the New York Times Archive and is pay for use. It turned out that the manufacturer of the drug responsible for destroying the consumer's liver made his living selling tee-shirts from a stand and decided to try his luck selling herbal supplements by filling some gel-caps he bought with a substance someone at the gym told him burned fat. If the FDA really wants to protect consumers, it should be less paternalistic in the field of prescription drugs and moreso with readily accessible "herbal supplement" drugs that are dangerous and make false claims.

Stuart Buck and The Curmudgeonly Clerk both point out some pretty serious past errors from the ABA rating system. This is a terrible shame. If the ABA ratings were limited to assessing relatively objective factors, and trusted by both sides, they could actually be something useful to look at (as I've written). But can anybody name the last time a Senator's decision about how to vote on a nominee (or even a voter's decision about how to vote on a Senator) hinged on the ABA rating of that nominee?

And there are few, if any, sitting judges I admire more than Alex Kozinski and Richard Posner, both "qualified/not qualified".

Rather than tack assorted updates onto previous posts, I'll just post various helpful comments sent in by readers.

One of our very rare Cambridge-based readers writes in with some thoughts on comparative library structures:

I think it's also worth considering that the Cam UL seems to be not particularly well-funded by American standards. Consider: the stacks close at 6:45 on weekdays. I don't know about Chicago, but the weekday stacks closing time at Columbia is 10:45. Also, they don't have an acquisitions librarian at the UL. Could you imagine having a library this size, at a uni this caliber, without someone specifically tasked to choose which books to buy? . . . Let's not even get started on the idiocy of having every faculty library plus the UL have different policies on borrowing times, etc.

I am not sure about the motivations of Cambridge, but at the last university I attended . . . there was a form of one-upmanship that was being played there. If you knew certain books would be on the reading list for a class, the gamesman would check them all out before classes started, in order to prevent other classmates from getting better grades than the gamesman. If you were an undergrad, you might conspire with a grad student to check them out for you. If you neglected to update your mailing address with the library, it becomes impossible for recall notices to get to you. Undergrads got books for 4 weeks, grad students got till the end of the semester, and faculty/staff got till the end of the academic year. Approved high school students and alums got them for 2 weeks. It was not rare to see a grad student or professor at the check out counter at the end of the semester with a large cart holding 20-50
books. . .

Additional theory: the difference in customs in lending policies may have something to do with the differences in libraries in the US and UK. I believe that Carnegie's public libraries were the first to allow the unwashed masses to borrow books. At that time, libraries were essentially private clubs that charged for loans. Some ibraries in the UK also pay fees to the author of a book for the number of times the book is checked out.

I think the issue is a bit more complicated that mere costs of accommodation or fitness standards. If I remember correctly, when Israel was a new state, the Israeli army was actually very integrated along gender lines, even the combat divisions. However, the military quickly discovered that male soldiers would accept strategically unacceptable risks when dealing with female soldiers, while this was not the case when dealing with fellow male soldiers. Women treated both genders equally. From what I remember, this chivalrous behavior was not amenable to training and was the main cause for Israel's subsequent segregation of its combat divisions.

I am not sure what to make of this. One one hand, women who want to serve in the military are made to bear the cost of male behavior (yet again, some might say). On the other hand, women inspired a great deal of stupid male heroism, and this costly behavior appears to be entrenched. In short, I am not sure if this policy tradeoff is very clear cut in this case. It all depends on how highly you value the right of women to serve in the military.

You can only ignore small probability events when there aren't correspondingly large consequences. The word "moral" in Buffon's paper is used in the same way as Laplace used it, to take into account both probabilities and consequences.

For example, I would ignore a 1 in a million chance of losing $100. It is "morally certain" not to happen. The payout is small compared to the probability.

However, I do not ignore a 1 in a million chance of dying. It isn't a big worry, but that risk is worth about $15 to me. That is, putting my seat belt on is like winning $15, if my seat belt reduces my risk of death by 1 in a million. (No, you can't kill me for $15 million; it's more complicated than that :-).

This is the idea behind risk analysis: low probabilities of high consequences. People might ignore these risks, but they shouldn't when making important decisions. For example, safety professionals use "micromorts" (one in a million chance of dying), while nuclear plant analysts use "nanomelts" (one in a billion chance of a meltdown) to think about these risks.

What the St. Petersuburg paradox does is make the consequences grow at the same rate the probabilities are decreasing (either progressively doubling the payoff or, in the other examples (you) point out, doubling the "utility" to defeat concave utility arguments). This means that you cannot ignore any part of the deal; each part has just the same "moral expecation".

Lunch today with the New York Times revealed several interesting articles. To wit:

Rents in Manhattan are down, so now for only a little more than $2000 a month, you too can get a 730 square foot apartment with no closets at 10th and 56th. One of our co-bloggers is currently trying to find a place to live in New York City, but I'm not sure this news is totally heartening.

John Muhammed is representing himself in court, and there's disagreement about whether this is a good move. Argument is done mostly by analogy. Kevorkian is serving time for taking his case into his own hands; Zacharias Moussaoui has brought his trial to an impasse. It's not entirely clear whether he's doing this under the theory that it's harder to condemn a man to death when he's been talking to you for days, because he doesn't trust his lawyers, or because he has some stunt yet to play.

David Brooks thinks that John Edwards has the theory that will bring the Democrats out of darkness. Of course, I've always thought it's a bad idea for political parties and partisans to take tactical advice from people on the other side. That said, in the same spirit I'd like to suggest that the Democrats just suck it up and take marijuana decriminalization under their portfolio, to bring the mighty (ha ha) electoral weight of the Libertarians behind them.

The Boston Police, uncontent to let the Yankees leave town unpunished, are pursuing charges against Jeff Nelson and Karim Garcia, who seem to have beaten the tar out of some poor Red Sox groundskeeper. Much as I suspect that this case isn't being pursued for entirely neutral reasons, thugs don't become less so just for wearing jerseys. (Well, except in football).

A pacifist college student snuck dangerous things (bleach, box-cutters) onto Southwest Airplanes and is now facing charges in federal court. On the one hand, it seems silly to pursue serious a very serious penalty against him, since his intent was pretty clearly unmalicious. On the other hand, did he really have to leave them there for a month? (And what does it say about Southwest that they don't ever clean out their bathrooms thoroughly enough to find a box cutter?) I mean, after all, imagine if you were an unarmed nut with terroristic impulses, and just happened to be digging around under the sink, where Lo and Behold! the weaponry you needed to carry out a hijacking was awaiting you. Okay. I read too many novels.

Linda Greenhouse notes that the Court's returning (yet again) to the question of what exactly judges get to decide instead of juries.
According to Ms. Greenhouse, the question essentially boils down to whether Ring v. Arizona (which said that "aggravating factors" necessary to apply the death penalty must be found by juries rather than judges) applies in non-capital cases. I don't know enough to know if that snapshot characterization is right, but I have read Ring, and if so, this could be quite a fascinating case, especially for Justice-watchers.

Ring had a pretty odd line-up with Scalia, Thomas, Kennedy, Ginsburg, Souter, and Stevens in the majority, Breyer concurring in the result, Scalia and Kennedy concurring in more than just the result, and O'Connor and Rehnquist dissenting. "Death," as any 8th Amendment scholar can tell you, "is different," so it's not at all clear who will jump what side when the dust has cleared. Well, it's fairly clear that Scalia would be happy to apply Ring in non-capital cases (he writes "I believe that the fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level of punishment that the defendant receives–whether the statute calls them elements of the offense, sentencing factors, or Mary Jane–must be found by the jury beyond a reasonable doubt."), and that O'Connor and Rehnquist wouldn't be. Justice Kennedy's concurrence says that stare decisis is the key issue for him here.

While Justice Breyer voted for the Ring result-- that juries rather than judges got to decide-- he did so because death was involved. It's unlikely he'd do so in another context:

. . . I cannot join the Court’s opinion. I concur in the judgment, however, because I believe that jury sentencing in capital cases is mandated by the Eighth Amendment.

This Court has held that the Eighth Amendment requires States to apply special procedural safeguards when they seek the death penalty. . . Otherwise, the constitutional prohibition against “cruel and unusual punishments” would forbid its use.

I add one further point, lest the holding of today’s decision be confused by the separate concurrence. Justice Breyer, who refuses to accept Apprendi . . . nonetheless concurs in today’s judgment because he “believe[s] that jury sentencing in capital cases is mandated by the Eighth Amendment.” While I am, as always, pleased to travel in Justice Breyer’s company, the unfortunate fact is that today’s judgment has nothing to do with jury sentencing. What today’s decision says is that the jury must find the existence of the fact that an aggravating factor existed. Those States that leave the ultimate life-or-death decision to the judge may continue to do so–by requiring a prior jury finding of aggravating factor in the sentencing phase or, more simply, by placing the aggravating-factor determination (where it logically belongs anyway) in the guilt phase. There is really no way in which Justice Breyer can travel with the happy band that reaches today’s result unless he says yes to Apprendi. Concisely put, Justice Breyer is on the wrong flight; he should either get off before the doors close, or buy a ticket to Apprendi-land.

Sara Butler thinks the Israeli army is being "sensible" by excluding women from front line combat duties. Color me a little more skeptical.

The basic argument is that women are systematically weaker, and can only march 32 miles rather than the requisite 55. Now I'm not arguing that we should lower physical standards to let women into the army. I am arguing that if some women happen to meet those physical standards, we should let them. The study finds that women can't lift as much or run as far, but even if that's true for women as a sex, is it true of every individual member of the species? There are an awful lot of women who can march farther than and probably lift more than I can.

Are there women who can lift 55% of their body weight while marching 55 miles? I have no idea. But if there are, why not let them serve front-line duty if they want to?

You could argue, of course, that you only learn whether people are capable of these things after a lot of training, and that spending that training energy on women rather than men is likely to be a waste. But you have to train the men, too, and the army also probably has a system of weeding out "promising" men from "unpromising" ones (like me). Why not let women have some similar process, just in case there's an exceptional one who makes the cut?

You could also argue that there's an economy of scale in gender-- it's too expensive to make accomodations for just a few women, and not enough women will qualify to justify the costs of admitting them. That might be true, but I'm not sure how many accomodations really would have to be made. In cases where these front-line units serve alongside other units that women do serve in, accomodations are already being made. But since the rule would be that women could join the unit only if the were physically as strong as the men, there oughtn't be any need to separate out the genders of the unit.

Finally, you could argue that letting women into the unit will hurt unit cohesion and the like (note that this isn't what the study Sara links to is arguing). I think that might well be true, just as it might have been true before our armed forces were racially integrated. But I've written before about why I think unit cohesion isn't the end-all argument against racial or gender equality.

Just to reiterate: To the degree women are indeed "the weaker sex" it makes sense not to put them in front line combat, or in jobs where their lifting ability will make a crucial difference. But if the army is confronted with a particular woman, an outlier, who is strong enough to do the job, she shouldn't be denied the job on account of her gender.

Hopefully that isn't a controversial position to the sometime-feminists over at Diotima.

When I started reading this Christopher Hitchens piece, I thought to myself, "isn't railing against Mother Theresa sort of like stealing candy from orphans or throwing small children out of windows?" By the end, I thought to myself, "wow. Maybe I should go buy Hitchens's book on Mother Theresa." Which was, I guess, sort of the point.

Dan Drezner thinks that Atrios is creepy:

Atrios concludes his last post by saying, "I find the rallying around [Gregg Easterbrook] rather creepy." You know what I find creepy? Anonymous bloggers hypocritically lambasting Easterbrook and other bloggers with the guts to write under their own name.

I wasn't trying to imply that at all. I was trying to imply that the kind of schadenfreude Atrios takes from Easterbrook's current plight strikes me as hypocritical.

The Supreme Court has issued its first opnion of the 2003 season, in the case of Yarborough v. Gentry. The basic issue was whether having one's defense lawyer render the following closing statement violated one's right to effective assistance of counsel. The court unanimously said no. (Oh, and the Appellate Court they reversed? The Ninth Circuit. Chalk one up.)

"I don’t have a lot to say today. Just once I’d like to find a prosecutor that doesn’t know exactly what happened. Just once I’d like to find a D. A. that wasn’t there and that can tell and they can stand up here and be honest and say I don’t know who is lying and who is not ‘cause she wasn’t there, ladies and gentlemen.
[I] wasn’t there. None of the 12 of you were there. None of the other people in this courtroom were there except those two people and that one guy who saw parts of it, or saw it all. Pretty dark. Dark. It was light. Those are the three versions of his testimony with regard to what he saw and what he saw. I don’t know what happened. I can’t tell you. And if I sit here and try to tell you what happened, I’m lying to you. I don’t know. I wasn’t there. I don’t have to judge. I don’t have to decide. You heard the testimony come from the truth chair. You heard people testify. You heard good things that made you feel good. You heard bad things that made you feel bad.
“I don’t care that Tanaysha is pregnant. I don’t care that she has three children. I don’t know why that had to be brought out in closing. What does that have to do with this case? She was stabbed.
“The question is, did he intend to stab her? He said he did it by accident. If he’s lying and you think he’s lying then you have to convict him. If you don’t think he’s lying, bad person, lousy drug addict, stinking thief, jail bird, all that to the contrary, he’s not guilty. It’s as simple as that. I don’t care if he’s been in prison. And for the sake of this thing you ought not care because that doesn’t have anything to do with what happened on April 30th, 1994.
“He doesn’t know whether or not he’s been convicted. Didn’t understand the term conviction. That is not inconsistent with this whole thing of being spoken and doing all this other crime stuff as opposed to going to school. I don’t know. I can’t judge the man. The reason that they bring 12 jurors from all different walks of life, let them sit here and listen to people testify, and the reason that the court will give you instructions with regard to not having your life experience, leaving it at the door, is because you can’t just assume that because a guy has done a bunch of bad things that he’s now done this thing.
“I don’t know if thievery and stabbing your girlfriend are all in the same pot. I don’t know if just because of the fact that you stole some things in the past that means you must have stabbed your girlfriend. That sounds like a jump to me, but that’s just [me]. I’m not one of the 12 over there.
“All I ask you to do is to look at the evidence and listen to everything you’ve heard and then make a decision. Good decision or bad decision, it’s still a decision. I would like all 12 of you to agree; but if you don’t, I can’t do anything about that either.
“You heard everything just like all of us have heard it. I don’t know who’s lying. I don’t know if anybody is lying. And for someone to stand here and tell you that they think someone is lying and that they know that lying goes on, ladies and gentlemen, if that person was on the witness stand I’d be objecting that they don’t have foundation because they weren’t there. And that’s true. The defense attorney and the prosecutor, no different than 12 of you.
“So I’d ask you to listen to what you’ve heard when you go back, ask you to take some time to think about it, and be sure that’s what you want to do, then come out and do it.
“Thank you.”

In an op-ed in today's Chicago Tribune, Northwestern Law prof Steven Lubet argues that liberals need not fear a constitutional ammendment banning flag-burning [login/password gapers/gapers]. He gives a very similar arguement in The American Lawyer here.

In the Tribune op-ed, he notes

"First, opinion polls show that nearly 80 percent of Americans are in favor of it. Of course, widespread public support does not justify the elimination of essential personal freedoms. Protest is often unpopular. That's why we have a Bill of Rights. On the other hand, public sentiment is an important value that liberals all too often seem to overlook. At the very least, the overwhelming approval of the flag amendment should cause us to ask just how much damage it would really do to civil liberties."

ok, so I quote that so that you too can cough on your morning tea/coffee. But he does at least seem to not argue that public sentiment alone should decide either the constitutionality or value of banning flag-burning. [Although in other contexts, liberals have suggested that public sentiment should have some weight. See, for instance, this piece by Yale's Akhil Amar, arguing for a greater inclusion of public sentiment in determining what's "cruel" under the 8th Amendment and ultimately "redefin[ing] the relationship between the people and the Supreme Court." Eesh, people. I call myself a liberal, but of the devout Constitution-carrying variety. ok, digression over.]

Lubet's op-ed: "And it turns out that the flag amendment would not limit freedom of speech very much at all. No words would be prohibited, no opinions would be suppressed. A single manner of protest would be enjoined, but the ideas behind the protest could still be expressed in endless ways."

Lubet's claim that "no opinions would be suppressed" if "a single manner of protest [were] enjoined" bears a striking resemblance to an issue the Court has already decided in Cohen v. California. Paul Cohen, a Vietnam protestor, calmly walked into a Los Angeles municipal court wearing a jacket emblazoned with the word "FUCK THE DRAFT." He was arrested for disturbing the peace on the chance that the offensive words he wore could be provocative. The Court reversed his conviction (not obscene because not erotic; not provocative because no person would find it a direct personal insult or invitation to fisticuffs).

Justice Harlan concluded his opinion:

Additionally, we cannot overlook the fact, because it is well illustrated by the episode involved here, that much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated. Indeed, as Mr. Justice Frankfurter has said, "[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures - and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation." Baumgartner v. United States, 322 U.S. 665, 673-674 (1944).

Finally, and in the same vein, we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able, as noted above, to discern little social benefit that might result from running the risk of opening the door to such grave results.

I side with Justice Harlan: flag-burning, as a mode, expresses something that, well, whatever it would be replaced by does not convey. Lubet is not as concerned, for he thinks that flag-burning lost its "integrity of protest" now that flag-burners do not run the risk of prosecution.

"Actions can be more persuasive when they are taken at personal cost. That is the power of true civil disobedience. At some point, we liberals might want to worry less about enabling every single expressive outburst, and more about the vitality and content of purposeful dissent." [from the Am.Law. piece]

Lubet concludes: "People take great comfort in our flag and that devotion deserves some recognition. So, in a time of increasing challenges to real civil liberties, this is one battle that need not be engaged."

I am not sure why it's relevant that "Millions [of] Americans regard [the flag] with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they have," to quote Rehnquist's dissent in Texas v. Johnson. Personally, I take comfort in knowing that my flag may be burned if I have a message that would be best communicated through that medium. But I suppose my views are in the minority here. And while Lubet thinks that liberals should devote their time to combatting more pertinent dangers -- right-wing judges and the Patriot Act -- I don't think the push recently for an amendment bannng flagburning has been strong enough to justify that liberals give up the fight on this one. Arguing against such an amendment isn't currently very time- or resource-consuming, and I worry that liberal political capital might be more damaged by conceding the issue.

At King's Cross station in London, there's a blank wall with 9 3/4 on an old-looking sign above it. This is, of course, the way to get to the mythical platform 9 3/4 that figures prominently in J.K. Rowling's stream of Harry Potter books. Does anybody know whether the sign pre-dates the books, or whether it's been erected in her honor?

If you are interested in consuming some of the finest ice cream ever made and you aren't in Ohio, you can order it here. My personal recommendation is the black raspberry chip.

With the senate vote on the Pharmaceutical Market Access Act looming on the horizon, pharmaceutical companies such as Eli Lilly are taking the decisive action of limiting drug sales to Canada.

The Pharmaceutical Market Access Act, or HR 2427, proposes to lift the ban on reimportation of U.S. made drugs from other countries and also allow importation of FDA approved drugs from certain countries. Ariel Dillon, an intern at the Independent Institute, offers an excellent op-ed summarizing key features of the bill and analysis.

While the reimportation issue is somewhat fuzzy to me, the importation of drugs originally developed and manufactured in other countries is less-so. As long as the imported drugs aren’t stolen intellectual property by U.S. patent standards and can be demonstrated to be what they say they are (i.e., safe and not counterfeit), I don’t see why they shouldn’t be allowed into the U.S.

However, as for reimportation, the crux of the act, several factors are at work. As Dillon points out, on the face, it seems like a market-based strategy to allow U.S. consumers access to other markets (most notably Canada) in order to buy pharmaceuticals. But once you examine why those other markets seem competitive, you notice that they exist only because of price-fixing on the other countries’ parts. Reimportation of American-made drugs isn’t really a market friendly strategy because of the price control that makes the reimportation option tempting in the first place. Dillon offers three potential scenarios of reimportation:

Good: If supporters of reimportation are right, in addition to providing Americans with the opportunity to purchase pharmaceuticals at lower prices, the Act would force American drug makers to reconsider their current pricing agreements with foreign governments. When presented with the choice of higher drug prices for their citizens or no drugs at all, foreign countries would theoretically reform their price control systems. Thus, prices in America would fall, prices in foreign countries would rise, and companies’ costs would be more evenly distributed among all consumers of American-made pharmaceuticals.

Not As Good: Another possible scenario under reimportation is that prices will temporarily drop for American consumers, but will quickly rise again. Countries such as Canada, likely the largest source of reimported drugs, may opt to restrict reexportation of drugs to America instead of straining their own people’s supply of cheap medications. Or, as Pfizer has already said they’ll do, companies might limit exports to quantities large enough only for the importing country’s domestic supply.

Bad: The worst possible outcome of reimportation is that it would hurt American consumers by importing foreign price controls, cutting drug makers’ revenue, and thus discouraging research and development. Faced with limited supplies and higher drug prices, foreign countries might even steal drug patents. Worse, pharmaceutical-counterfeiters might swamp the U.S. with dangerous fake drugs. Also worrisome is the possibility that the threat of fake drugs might scare the FDA into placing more regulations on drug production, thus making companies’ costs go up and prices for medications rise even more.

Dillon also suggests that a whole-scale reformation of the FDA, akin to Gary Becker’s suggestion is a better answer.

When initially examining the potential legislation, I felt uneasy either way it could go. Banning imports doesn’t sit well with me but neither does promotion of price-fixing. I can understand why pharmaceutical companies would negotiate reduced prices for drugs to impoverished nations: health isn’t entirely a consumer commodity and private charity is more in a company’s interest than government mandate. Also, by charitably reducing drug prices for impoverished countries, companies protect their own intellectual property from abuse by other nations (although I don’t think a company should have to have this check to protect itself).

After reading the Becker piece, I realized why both reimportation and banning reimportation didn’t sit well with me. Neither really addresses the root of the problem: the binding of the invisible hand early in the process. A drug costs $800 million to bring to market and as Becker points out, a lot of this money is sunk in meeting stringent standards set by the FDA. By limiting regulation at an early stage of a drug’s life in the market, pharmaceuticals become more affordable and situations such as price controls in Canada and import bans in the U.S. don’t arise.

Justice Scalia and William Safire have written a column together in this Sunday's NYT. No surprise, it's conservative. Grammatically conservative. Remember that line from his dissent in Lawrence that kept getting quoted "'I have nothing against homosexuals" without the context of "'I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means"? He explains his decision not to use an apostrophe after 'homosexuals' and 'group' with his characterstic wit. A sample:

''God -- whom I believe to be a strict grammarian as well as an Englishman -- has punished me. The misquotation would have been more difficult to engineer had there been an apostrophe after 'homosexuals.' I am convinced that in this instance the A.P. has been (unwittingly, I am sure) the flagellum Dei to recall me from my populist, illiterate wandering. (You will note that I did not say 'from me wandering.')''

I'm going to take a big risk here in this post. I'm going to disagree with the blogosphere's eminent legal theorist, Lawrence Solum. Solum's "Legal Theory Lexicon," which you should go read, is on "The Veil of Ignorance." Go read it before reading on. (Particularly astute readers will recall that Professor Solum has also defended the "Veil of Ignorance" in his interview here (question 17)).

The basic idea of the veil of ignorance (as you will have read by now) is that you should set up the rules of a society with an ignorance of which role in that society you will occupy. The trouble (for me) comes when we are deciding what we part of our identities we may take with us behind the veil, and what we may leave behind.

Since the whole appeal of the veil is that it's supposed to lead us to generally universal rules, or at least to some sort of consensus, Rawls suggested that we ought to check our utility functions at the door. This, of course, is very hard to do. Why? We can't make decisions without our utility functions!

Here's an example of the problem with this veil (let's call it the "strong veil"): I have a choice between creating a society where everybody has the same amout of wealth, or one in which some people have a lot of wealth, and some people have very little, but the total amount of happiness (or of wealth) is the same in each society. Assuming I don't know which person I'll get to be, which kind of society will I want to create? There is no universal answer if people are denied their knowledge of risks.

Of course, as Professor Solum rightly points out,

Legal theorists rarely need to impose a veil so thick that the parties behind the veil will judge legal policies solely on the basis of "expected utilities."

Witness: Theories don’t guarantee social justice, social justice tells you if a theory is any good. Right and wrong are not complicated—when a child cries, ‘That’s not fair!’ the child can be believed. Children are always right.

Tom Stoppard—Squaring the Circle

Teacher: You have to share the Curious George book.

Student: Why?

Teacher: Matthew wants it too.

Student: But I don't want to give it to him.

Teacher: Well, how would you feel if you were Matthew?

Student: Well, I would want me to share.

Teacher: You see?

Student: But if I were me, I wouldn't want me to share.

Teacher: . . .

Teacher: . . . well, what if you didn't know if you were you or Matthew? What if you were behind a veil of ignorance?

Student: Well then I wouldn't know whether I wanted me to share. I would be ignorant.

Teacher: Well, in general, would you want to create a norm of sharing, or a norm of not-sharing?

Student: That would depend on whether I was going to have a lot of stuff, or not very much stuff. And it would also depend on whether I would want to create a norm at all.

Teacher: Well, everybody likes to have norms and standards. No matter who you were, you would want that.

Student: Okay, but which norm would I want? Would I want a sharing norm or a non-sharing norm?

Teacher: Well . . . sharing norms are better for society.

Student: But would I care about society?

Teacher: Everybody cares about society.

Student: Nuh-uh. Most people who don't like to share probably don't care that much about society. That's why they don't like sharing norms.

At the University of Chicago, our library has about six million books. Students can check out any number of them for a quarter, and can renew them automatically online for up to three quarters. Here at Cambridge, the central library has about seven million books. Students must be in at least their third year to be able to check them out at all, and students like myself may check out no more than 5 books for no more than 2 weeks at a time. On the bright side, the books are on the shelves a lot more of the time when I want them. On the dark side, how am I supposed to pick only five books?

I don't know much about the costs and benefits of library systems, or even how libraries attempt to measure them. Costs, I suppose, are somewhat ascertainable. Books that are gone for really long periods of time are probably more likely to go missing, or at least to get damaged, and you might be able to get some sense of how often people have to wait a few days to recall a book from another user. On the other hand, the benefit of having one's books distributed and read widely, or in the hands of the students who want to be able to consult them in the middle of the night, is much more difficult to assess.

I think in this case the difference is linked to a slightly different attitude towards work. I'm told that here students are much less likely to work around-the-clock and therefore less likely to need their books in their rooms. It's also the case that many fewer students buy their textbooks, and therefore the libraries have to make it easier for many people to use a class book at once. (Of course, Chicago's answer, unimplemented here, is the "reserve system," where certain books can only be borrowed for a day or an hour at a time.) My own opinion is that this misses the point of having such a vast library in an organic institution of learning that prides itself on the possible directions of independent study. (And Incidentally, what's the point of having two copies of all of Terry Pratchett's trashy Sci-Fi Discworld novels, and then not letting people check any of them out?) Then again, I'm something of a book-hog, so this could be pure self-interest speaking. Still, I'd like to know how the powers-that-be came to decide that the costs of extensive book privileges to university students outweighed the benefits.

Incidentally and related, if anybody knows of any decent used bookstores in the Cambridge (England) area, please send along any information.

One other possible explanation to add to Beth's posts about why marriage might not cause health, despite the seeming correlation. It's also distinctly possible-- likely, even-- that health causes marriage. That is, people are more likely to be willing to make life-long commitments to other people if those other people are relatively healthy, well-adjusted, and all the rest. Without some sort of temporal longitudinal study showing that people become healthier and happier after their marriage rather than before it, this correlation simply won't be able to imply the causation that the authors suggest.

Does anybody know what's happened to Pejmanesque? He was there when I left yesterday.

Eugene Volokh on Words:

Newspapers are in the word business. They ought to know the value of conveying unpleasant truths (here, the truths about how blacks were in fact viewed and addressed during that era). They ought to know the value of rearing children to understand these truths. They ought to know that giving in to the desire to avoid "counterproductive" "controversy" simply redefines the controversial more and more broadly, as "To Kill a Mockingbird" shifts from controversial to forbidden, and the next item on the list shifts from accepted to controversial. And they ought to know that a word isn't a magic incantation with inherent evil powers, but a device for conveying meaning that varies greatly with context, and that can't be understood, praised, or condemned apart from its context.

What about the President's claim that it is important to "think about our disagreements without scapegoating and accusations of moral bankruptcy"? Bullshit. What good is a university where people don't attack each other hammer and tongs? Where nobody is going to get hurt? Are ideas worth arguing about, or are they just things to play with while wondering where Professor Zeitgeist managed to get that unadulterated Kona coffee or whether Umbrian olive oil is better than Ligurian?

Consider two related questions from the blogosphere. The Curmudgeonly Clerk asks:

While there may be an age so tender, inexperienced, or lacking in judgment as to preclude genuine consent, surely 17 is not the actual threshold. Locating the age of consent at this particular age (or nearly any particular age) is a somewhat arbitrary exercise in line-drawing. Given changing sexual mores and views of female sexuality, should this particular line be revisited? Ought the law recognize a good faith reasonable mistake-of-age defense?

At what point am I going to undergo the mysterious transformation from a person who thinks that the sad thing is that some teenagers don't get enough play into a mature adult who thinks the kids today are having too much sex?

The Yglesias commenters make me want to reiterate a point that I've made here before. Just because you think one thing earlier in your life and another thing later in your life, that doesn't necessarily mean the thing you thought later is correct. Now, obviously we all think we're right. We wouldn't think what we thought if we thought it was wrong. (Consider the great degrees of mental dexterity or cognitive dissonance necessary to say "I think X, but I'm wrong," in a tone of seriousness). But we should be conscious of the possibility that we will later change our minds in ways that aren't necessarily correct.

In particular, it's not at all surprising that teens want to have more sex than might be good for them (because they often take a narrow view of the potential harms) while adults probably want those teens to have less sex than is good for them (because they often take a narrow view of the potential benefits). In a normal society, this problem is rectified by having both sides bargain before a legislature and in the court of public opinion to try to reach a bargain everybody's happy with. Because those under the age of 18 have almost no political salience and 18-19 year olds have only slightly more, that's not the solution we've chosen. Nonetheless, we end up with a not-unreasonable system (as the Clerk discusses, where kids are allowed to have sex with kids with relative impunity (most of the time, most places) while adults are expected to pick on somebody their own size.

For an interesting if left-leaning take on the benefits and costs (mostly the benefits) of sexual exposure for children, read Judith Levine's Harmful to Minors: The Perils of Protecting Children from Sex. One (tame) excerpt:

"Knowledge, not ignorance, improves sexual satisfaction." Point taken. Still, there was something about those sessions with your pants tangled around your knees, beyond sex's newness, beyond anticipation, beyond the feeling of transgression-- that made them great. . . You were not sprinting down a narrow, well-trod home stretch to slide into it. You didn't have a goal. You were just exploring your bodies and each other.

I don't see as how the particular act of sex should be a cause for especial worry, any more so than, I dunno, driving a car. It can be a fun way to pass the time, but there also some degree of risk and cost involved, so the trick would be teaching your teen to keep it all in healthy moderation, yes?

Andrew David Chamberlain is also intrigued by the St. Petersburg Paradox (as I was). He asks:

I just want to offer one solution that seems obvious to me, but I've never seen anywhere.

Here it is: brains are analog devices, not digital. They work based on perceived levels and differences between things. That means very small probabilities might be cognitively indistinguishable from zero -- just like 1 lb. on an analog bathroom scale is indistinguishable from zero. That would mean we're not willing to bet much based on tiny probabilities. Since the probability of landing more than, say, 10 heads gets very tiny, we treat it as impossible. So the expected value isn't really infinite after all. And that resolves the paradox.

I mean, do people take into account the 0.000976 chance of flipping 9 tails in a row and winning $1,024? Fat chance. There's some cut-off point below which we treat tiny chances of things as zero chances.

(4) Buffon. (1762, published 1777) To resolve the paradox, Buffon set all probabilities below 0.0001 equal to zero. Why? Because, he argued, any event of probability at least .9999 is morally certain to occur. Then any event of probability no greater than .0001 is morally certain not to happen. Why use .0001 as a threshold? Because based upon mortality data he had estimated the probability an average man of 56 in good health will die within the next 24 hours to be about .0001. And such a man would, he claimed, have no fear of death in a given day when he arises, if he is in good health. Why age 56? Because Buffon was nearly 56 at the time!