Erstwhile Crescatter Sara Butler asks:

How on earth do you suddenly look at a person and decide, "I am going to marry you"?

Sarah: I'll know when my love comes along, I won't take a chance. For oh, he'll be just what I need. Not some fly-by-night Broadway romance.

Sky:
And you'll know at a glance by the two pair of pants.

Sarah:
I'll know, by his calm steady voice,
Those feet on the ground.
I'll know as I run to his arms,
That at last I've come home safe and sound.
And till then,
I shall wait.
And till then,
I'll be strong,
For I'll know when my love comes along.

Sky:
(spoken) No, no, no, you can't dope it like that,
What are you picking, a guy or a horse?

Sarah:
(spoken) I wouldn't expect a gambler to understand.

Sky:
(spoken) Would you like to know how a gambler feels about the big heartthrob?

Sarah:
(spoken) No.

Sky:
(spoken) Well, I'll tell you.

Mine will come as a surprise to me.
Mine I leave to chance and chemistry.

Sarah:
(spoken) Chemistry?

Sky:
(spoken) Yeah, Chemistry.

Suddenly I'll know, when my love comes along.
I'll know then and there.
I'll know, at the sight of her face,
How I care,
How I care,
How I care.
And I'll stop,
And I'll stare,
And I'll know long before we can speak,
I'll know in my heart.
I'll know and I won't ever ask,
Am I right?
Am I wise?
Am I smart?
But I'll stop,
And I'll stare,
At that face in the throng.
Yes, I'll know when my love comes along.

Anthony Rickey has found Karl Rove's secret weapon.

Go read Another Rice Grad's post on Damn Yankees (Yamn Dankees, as my grandmother calls them in the traditiona, non-cursing way).

I disagree with him on guns (not entirely sure if my position on guns is constitutional, but that's for another day), but I agree entirely with his sentiment.

An excerpt:

And that's what pisses me off. Southerners want to be left alone by people who don't understand us at all. We don't want damn Yankees like you coming down South and telling us how to vote. We don't vote on race -- and we're insulted that you think we still do. On the other hand, guns exemplify freedom to us. If you want to take away our guns, you're telling us you want to take away our freedom. Plain and simple.

Oh, come on, there are significantly worse ghosts in one's closet to hide. And maybe he'll be more effective with the official prayers for rain. Governor Foster issued three in the summer of 2001 to ease the drought: the first two went ok, but the last one went overboard and brought the hurricane Allison.

Will asks what I think about an article that Bobby Jindal published in the New Oxford Review. Thanks to Atrios, the article is avaliable as a pdf here (not sure how he found it, it's not in the U Chicago Library, which makes it pretty damn obscure).

First thoughts. Jindal is 32 years old. He wrote that article in 1994, when he was 23. I'll take just about anything said by a young college student, recently converted to a new faith and trying to figure out how to live his life according to it, with a great grain of salt. If I don't think the writings are the truth, I may decide to disregard them, a decade down the road, as the words of someone trying to find his place within his faith, wanting to see real proof of the existence of some very miraculous ideas.

Despite his detailed descriptions, it's hard for me to believe that what Jindal says he observed that night at UCF really happened because I do not believe in the existence of a Devil capable of possessing our bodies. I think this is the wrong way to approach the article, though. We read Mary Rowlandson and other Puritan captivity novels without focusing on whether or not she did have actual contact with God or the Devil; we focus on how her perception of such contact affected her. Likewise in Mr. Jindal's situation: we have a member of a charismatic church, a young woman quite frightened and troubled by the discovery of cancer, and a group of college students who may feel equally unworthy to the task of tackling wayward cells and wayward angels. Were this account to be read as a piece of literature, it would be fertile ground for psychoanalysis. But I hate to apply such approaches to real life.

Why does this article trouble us? Is it because it's not something we can laugh at as easily as we do an official proclamation of prayer for rain, for as much as droughts may affect our lives through crop failures and foreclosures, it's an act of nature and not an intensely personal leap of faith? There are religions we mock (please, if you're Wiccan, don't mention this in front of me and attempt to explain your religion to me, because keeping a polite expression on my face is not easy), religions we don't (Judaism), and religions that for some reason fall in between. I'm not talking about joking -- I like pretty good religious humor(1) -- but a genuine lack of displayed respect (2).

I think part of it is why the rednecks take so many hits in jokes nowadays (backlash to the real-life version of Beverly Hillbillies aside, they're the one possibly PC group left for mocking). To insult a religion that is not practiced by many in the US is to beat a man while he's down, and runs the risk of no one understanding your punchline (Swedeborgian humor, anyone?). It's cultural insensitivity to mock the Muslims, anti-Semetism to mock the Jews, and a cover for ethnic prejudice to mock the Catholics. searching, searching... Protestants!

And I think Protestantism is, in a way, harder for people to understand. There is no insence, no artwork designed to make you feel the real presence, few ritual prayers and ceremonies to put you in a different mindset. On the face it looks more rational, more rooted in what can be known for sure, and thus it seems to get hit harder by anyone who says "I don't see how that can follow." Take the Bible literally, and you're seen as ignoring science and misunderstanding the point of the document; agree that there's some metaphor within, and then why can't you pick and chose what to keep in a way the peanut gallery of society would prefer you weeded things out. The Christian in Alabama who thinks his faith demands a more equitable distribution of income is opposed by others, organized as conservative Christians, who don't want to read the text as he does or to feel compelled to apply it. All personal choices. Can't you people be consistent, grumble observers. But for Christian-society relations, it's a rock and a hard place and still no understanding.

Look, I can't understand why Mr. Jindal wrote what he did or believes what he does. But I'm also not convinced it's relevant to how he will perform as a governor. Urges faith-based programs: yes, I expect that. Take away the avaliablility of in-state abortions or require that all citizens of the state marry under convenentt-marriages without no-fault divorce: about as likely as that JFK's kowtowing to the Pope, or a Christmas snow in Baton Rouge. Mr. Jindal is a religious man, one who fought with his faith rather than being spoonfed it, never doubting. To me the former is a stronger sign of character.

(1) On the same page, Garrison Keillor writes ""Laughter is what proves our humanity, and the ability to give a terrific party is a sign of true class. When Moses came down from the mountain with the clay tablets, he said, "Folks, I was able to talk Him down to 10. Unfortunately, we had to leave adultery in there, but you will notice that Solemnity was taken out." And that night the Israelites killed the fatted calf and drank wine and told bible jokes in celebration."

Somewhere online recently (and google isn't telling me where) I was reading an article about a Christian humorous publication. They mispelled Wittenberg on the cover of their first issue, and have knowingly kept the error. To appreciate a good religious joke, you must have a certain degree of knowledge about the faith. One of their beginning level jokes was "How many Christians does it take to change a light bulb?" "Three, but they're really one." I would refer to the more substantive article, but unfortunately I can't find it.

(2) One of my friends came home from work yesterday and announched he was heading to Interchristian Varsity that night. He'd never attended while he was a student, but felt the need to go now because his work environment (the Fed downtown) wasn't very Christian-friendly. I have a lot of respect for the one guy who defended Descartes, under barrages of criticism for thinking the same as such an illogical author, when we discussed him first year.

Maybe Amanda will be able to comment more on the merits of this article by Bobby Jindal, about how he saved his friend from Satan's possession ten years ago-- I generally leave the Jindal-blogging to her.

I'm still hung up by the first footnote, which is one of those things that makes you feel like you've done nothing with your life.

(Of course, as Tom Lehrer might say, it is a sobering thought that by the time Evariste Galois (founder of modern group theory) was my age, he had been dead for a year.)

I digress. The Jindal footnote reads:

Bobby Jindal received his M.Litt. in Politics earlier this year from Oxford University, where he was a Rhodes Scholar. He is currently an Associate at McKinsey & Co. in Washington, D.C. He has been accepted at Harvard Medical School and Yale Law School, and has the option of returning to Oxford for a D.Phil. in Politics. He will be deciding which path to pursue soon.

Friend of Vice Squad (and guest friend of Crescat Sententia) Michael Alexeev, an economics professor at Indiana University, brings our attention to this uplifting tale, from Scotsman.com. Here's the start of the article:

"Armed police stormed a high school and ordered children to the floor at gunpoint so they could conduct a drugs search, it emerged today,

Officers ran into the South Carolina school, screaming at pupils to lie face down, before rifling through their bags.

Students who did not do as they were told were handcuffed."

No drugs were found.

Another story on the incident, from the Charleston Post and Courier (registration required) informs us that ...

"Fourteen officers and a police dog sealed off the main hallway Wednesday as about 20 administrators and teachers helped steer other students away, [Police Lt.] Aarons said. There were 107 students who happened to be in the hallway at the time, he added.

Police told the students to sit on the floor and put their hands out, [school principal] McCrackin said."

Principal McCrackin has no regrets, bless his heart, according to the Scotsman article:

"He [McCrackin] said: 'I'm sure it was an inconvenience to those individuals who were on that hallway. But I think there's a valuable experience there.'"

Perhaps Principal McCrackin should read up on just how much of an inconvenience it can be when police undertake drug searches with drawn weapons. He can take his pick from this list of drug war victims, though perhaps he should look most carefully at the Alberto Sepulveda case.

A few brief notes to recap: Cori Dauber is currently guest-blogging at the Volokh Conspiracy. This has provoked complaints from Amy Lamboley and Brock Sides. I added a link to the sidebar for the convenience of those readers who prefer a Dauber-free Volokh. This link, of course, comes from Eugene Volokh himself, who doesn't recommend it but understands that his readers may disagree.

Anyway, displeased reader Mike Zorn writes:

How dumb. I've seen better tactics by union goons.

There's a perfectly good button on your keyboard that will make you all
feel a lot better.

It's labelled "Page Down".

Its smaller cousin is marked with a down arrow.

If you don't like what she writes, do what grown men do. Fisk her.

But banging your tin pots and demanding she be taken away does little
more then make you - not her - look foolish.

If you haven't had enough of my thoughts on Oberlin's sexfest, then read on.

Matthew Yglesias thinks we need more sex in this country. The Curmudgeonly Clerk thinks that educational institutions shouldn't sponsor "this sort of behavior."

This isn't about prudishness. It is about the role of higher education. The sexual shenanigans that accompany college life are peripheral to, not part of, universities' mission. Universities may have some obligation to not get in the way of their adult students' libidinal impulses, but it is an obnoxious waste of scarce educational resources for institutions to devote funds to these activities.

For those of you not yet sick of hearing about Lochner, Lochner-lite, and whether Justice Janice Rogers Brown will be the horseman of an Epstein apocalypse, The Right Coast has a fascinating post on the politics of her nomination, while Professor Marston links to a post by Nathan Newman on the evils of broad interpretations of the "Takings Clause" (supporting this clause is what has gotten JRBrown accused of being a Lochnerite, or as Professor Marston might rather, a LochnerLiteite.)

Newman makes a very good argument for why the Takings Clause is important-- why stronger limitations on the government's ability to zone, redistribute, and take might mean a serious curtailment of the regulatory state. But he makes a much less good argument for why interpreting the Takings Clause in such a manner is wrong.

Don't get me wrong-- my tentative suspicion, even though I am a U-of-C-indoctrinated, Epstein-loving, Law-and-Econ-trained Libertarian-- is that Epstein's ambitions for the Takings Clause are probably too broad. But I'm not sure about that, and I think a lot of the legal questions involved require careful parsing of history and precedent, rather than simply announcing that the redistributive sky might fall.

[Bonus question: How and how much does the 16th Amendment's power to levy income taxes interact with the 5th Amendment's "just compensation" guarantee?]

In particular, what I'd like to avoid is the sort of ends-oriented jurisprudence that the Court gave us in Brown v. Legal Foundation of Washington. The "compellingness" of a state interest has never impressed me as a good test for when to ignore the commands of the Constitution. (Nor have I yet figured out how the Court decides whose interests compel them).

When one is sitting in the bookstore trying to read, one crying baby is an annoyance. Two are enough to make one abandon one's coffee and go home. As I left, I found myself wondering-- what is the etiquette for the possession of crying babies in coffee shops?

It's not that I don't have sympathy for the parents of crying babies. I mean, my parents have had to cope with multiple crying babies, and there's a non-trivial chance I might have to cope with some myself. Still, there's surely a rule of etiquette to balance competing interests. What is it?

[Bonus Question: Should the rule for crying babies be the same as it for the mentally handicapped or the epileptic? My own inclination is to go with Justice Janice Rogers Brown and say no-- babies get less deference than the disabled because handicaps stigmatize a particular minority while time and age are universal.]

Anyway, Miss Manners doesn't cover the issue fully. To a harried parent she offers this counsel (3/11/84):

When a child is sick, clean him up; when a child is crying, calm him down. The only differences between doing this in public and in private are that in private, you might allow a fretful child to cry himself out or you might show him some anger, which you cannot do in front of an audience; and that in private you would have the luxury of imagining that you claimed the sympathies of all the adult world.

Dear Miss Manners:

Monday night I treated my son to his 30th birthday dinner. The tab was $ 300, and I had also brought along a $ 250 cabernet sauvignon.

During dinner, there was incessant squalling and crying from an infant parked in a baby carriage two booths away.

Granted, I am old-fashioned enough to think that if the little one cannot read the wine list, he should be left at home with a babysitter.

Admittedly, I am also tired of parents in undershirts carrying in their precious newborns (with umbilical cords still attached) in little baskets while I am eating dinner.

The only things to be carried in a basket in restaurants are rolls.

My wife and son thought my response to this situation was inappropriate and could have been handled differently: As the screaming infant and his daddy passed our booth on the way out, I yelled that the little snot had ruined my dinner.

My only concession to good taste is that I should have screamed at the father, rather than the infant. Your opinion please.

Miss Manners's opinion is the same as yours: that people who yell, scream and squall should be removed from restaurants (even reasonably priced ones).

Evidently, your wife and son feel the same way about you.

Economist stories don't really need my help in touting them, I suppose. Nonetheless, this article on American exceptionalism is . . . (I have to say it) exceptional.

America's alliance with Europe kept millions of people free and wealthy during the cold war. To the extent that American assertiveness threatens that alliance, it also hurts something that has done immense good. But the world has lived with American differences for two centuries. (more)

Bordering the Market Square right next to Trinity College there are three coffee shops within spitting distance of one another. One is a normal Starbucks with a whole bunch of extra space downstairs. Another is a second Starbucks inside of a Borders, also with a lot of space. The third is Caffe Nero, a faux-Starbucks-coffee shop that serves the exact same coffee, near as I can tell. At any given time in the late morning to afternoon when I go for my daily cappucino, one of these often has a very long line-- it's not rare to see ten to twenty people in line at the counter in one of the Starbuckses.

I don't like standing in long lines to get my cappucino, partially because I'm a little impatient, but also because if there are twenty people in front of me, that reduces my odds of getting one of the comfortable chairs to read in, or else a spot by the window. So when I encounter one of these lines, I just walk right on to the next coffee shop-- a trip of less than sixty seconds.

And more often than not, one of the next two coffee shops will have no line at all, or just one or two people. Why?

Is it because people actually have strong preferences between one Starbucks and another? Is it because people in Borders are all reading books and magazines that they haven't bought, and therefore can't easily take to another nearby shop? Is it because people would rather wait in line for ten minutes than walk for one? Or because people use coffee shops as meeting places, so having said "I'll grab us a table and meet you at Caffe Nero" they can't easily substitue away from big lines? Or because people are socializing in line, so they're indifferent to time spent waiting in line? Will all of these unanswered questions cause me to turn into a yellow ranting prof?

For various reasons, I don't find any of these answers satisfactory, but maybe working this weekend on my "traffic congestion" essay will give me some ideas. In any case, please send your own.

After a month of buying things in England, I can't shake the intuition that things here are more expensive (controlling for the exchange rate) than they are in the U.S. The rational economist in me (who has taken serious blows here, here, here, here . . .) knows that this shouldn't be true. Something called Purchasing Power Parity (actually not: see UPDATE) ought to imply that stuff in the U.S. and U.K. cost more or less the same, at least this ought to be true of things that both countries can produce relatively competently, and aren't too expensive to ship. (Example: Normal Terry Pratchett paperbacks are 7-8 pounds each here.)

Still, I go about my daily routine, and notice I'm spending appreciably more for the same stuff than I was in Chicago. Why?

The answer, I think, lies in my daily routine, or what I call "The Supermarket Riddle." In the supermarket riddle, two customers are avid partisans of two different grocery stores. I'll call them Krogers and Marsh (though your local grocery stores may well be called something different). Each customer thinks his grocery store is marginally cheaper, so the two customers decide to switch stores one week, to settle things.

The Marsh guy goes over to Krogers and buys boneless skinless chicken breasts, white eggs, skim milk, some fennel, russet potatoes, etc. Meanwhile, the Kroger guy goes to Marsh and also buys eggs (brown), chicken breasts (skin-on), whole milk, yukon gold potatoes, etc. Similar stuff, but not quite the same. Both of them notice that their grocery bill at the other store is higher than they usually pay. Both of them conclude their store is cheaper, and go back to what they were doing (after a brief argument about which one of them owes the other guy a beer).

This is caused, of course, by the fact that people in different places buy different things. The Kroger guy has gotten used to buying skin-on chicken breasts rather than skinless ones because the skinless are so expensive at Krogers. But Krogers has cheap Yukon Gold potatoes, brown eggs, and so on. Similarly, the Marsh guy has gotten used to buying his particular pattern of goods rather than another because those are the things that are cheap at his store. It's not difficult for relatively small price-differences to exist, since customers (except frenchmen and my father) like to avoid going to multiple stores to shop for dinner.

So, I've decided, the "England is expensive" mentality must be because I'm trying to buy the same bundle of goods I'd buy in America, rather than substituting to the relatively cheaper things that I would have grown to buy if I'd grown up in Cambridge. So I'm trying to compile a list of things that are cheaper in England-- Altoids, Indian food, Guinness, poetry, Jane Austen novels, sweaters, cell phone service . . . and to substitute to buying more of those things and less of others.

One could do worse (well, I'm still not very enamored of sweaters).

UPDATE:

Jacob Levy emails to point out that I'm mis-stating the meaning of Purchasing Power Parity, which doesn't actually predict that exchange-rate-modified prices for food in Malawi ought to be the same as they are in the U.S.

The economic conclusion I'm trying to reference is that in countries with roughly similar per capita GDPs, it's a surprise when exchange-rate-modified price levels are vastly different, particularly when liberal international trade is permitted between the two nations. That's not what Purchasing Power Parity is at all, but I think they were covered on the same day in Macro.

So there's a puzzle here, but PPP does not mean what I thought it meant . . .

UPDATE the second:

Professor Levy also suggests that in fact different wholesale/retail networks and more efficient economies of scale help explain cheaper prices in the U.S.

It seems that Ms. Dauber's tenure at the Volokh Conspiracy has attracted criticism not just from us. (Amy's previous post here, mine here). Recall, Amy wrote:

Cori Dauber, whose posts are so shallow and abrasive as to make Clayton Cramer seem like a model of Volokhian reasonableness.

Sorry Eugene, this guy is your worst guest blogger since Clayton Cramer.

This seven sentence post contains five rhetorical questions. And this twelve sentence post contains seven rhetorical questions.

ROS (derisively): ‘Question and answer. Old ways are the best ways’! He was scoring off us all the way down the line.
GUIL: He caught us on the wrong foot once or twice, perhaps, but I thought we gained some ground.
ROS (simply): He murdered us.
GUIL: He might have had the edge.
ROS (roused): Twenty-seven—three, and you think he might have had the edge?! He murdered us.
GUIL: What about our evasions?
ROS: Oh, our evasions were lovely. ‘Were you sent for?’ he says. ‘My lord, we were sent for’ . . . I didn’t know where to put myself.
GUIL: He had six rhetoricals –
ROS: It was question and answer all right. Twenty-seven questions he got out in ten minutes, and answered three. I was waiting for you to delve. ‘When is he going to start delving?’ I asked myself.
GUIL: – And two repetitions.
ROS: Hardly a leading question between us.
GUIL: We got his symptoms, didn’t we?
ROS: Half of what he said meant something else, and the other half didn’t mean anything at all.
GUIL: Thwarted ambition—a sense of grievance, that’s my diagnosis.
ROS: Six rhetorical and two repetition, leaving nineteen of which we answered fifteen. And what did we get in return? He’s depressed! . . .Denmark’s a prison and he’d rather live in a nutshell; some shadow-play about the nature of ambition, which never got down to cases, and finally one direct question which might have led somewhere, and led in fact to his illuminating claim to tell a hawk from a handsaw. (Pause.)
GUIL: When the wind is southerly.
ROS: And the weather’s clear.
GUIL: And when it isn’t he can’t.

In one of the more entertaining entries to the online quiz game, William Saletan releases "Whack a Pol," where you can strike candidates who strongly disagree with you about issues and see what's left that might be tolerable.

I have discovered I have to choose between my tentative support for the war/reconstruction in Iraq (if relinquished, I can have Dean, Clark, or Kerry) or my tentative support for full-faith-and-credit Gay Marriage (if relinquished I can have Bush or Lieberman).

Despite Al Sharpton's stance on Janice Rogers Brown, I learn that I can only support him if I am willing to shred NAFTA and accept government nationalization of health insurance.

Clarification UPDATE:

(Thanks to Brian Ulrich). I don't mean to imply that I have an opinion on what Dean/Clark/etc.'s stance on Iraq actually is. I'm not sure I have the institutional capacity to figure that out, and I'm not sure enough about my own feelings for it to be a make-or-break issue for me. I'm simply going by William Saletan's little buttons (which are designed to be fun as much as to be serious). If there's any confusion, go click the link.

One of the assumptions required for von Neumann-Morgenstern utility theory is called the "independence axiom." This axiom basically holds that if you have a choice between two gambles (risky propositions, bets, uncertain futures, etc.) and for some percentage of the time, they come up the same, then you should decide between the bets based on the parts that don't come up the same.

Thus, if I offer you a choice between, say, watching a move about Venice or getting a dollar, and you're pretty much indifferent, then you should also be indifferent between these two bets:

A: Watch the Venice movie half the time, get $100 half the time.

B: Get $1 half the time, get $100 half the time.

The "independence axiom" is incredibly useful, because it lets us take just a few pieces of information about how a person bets, and derive a whole lot more. And, economists inform us, it's not that hard to buy, is it? Your happiness with your current state should never be influenced by the states that could have been but weren't.

Wait. Come again? happiness with your current state should never be influenced by the states that could have been but weren't. Who are we trying to kid?

Go back to the Venice movie bets. Suppose instead of offering you $100 half the time, I offer you a trip to Venice half the time. Thus, you get a 50% chance of a Venice Trip and you choose what you want your consolation prize to be the rest of the time-- a movie about Venice, or a dollar. A lot of people having just failed a good shot at going to Venice might not want to think about Venice at all. Is that so silly?

Or suppose you're sitting on the button in a game of Texas Hold'em and watch two guys raise the blind and meet three callers, and so you fold your suited 2-6, then watch as the suited 3-4-5 flop to give you the nut straight flush. Assuming the deck was randomly shuffled and your original decision to fold was rational (and oh, it was), should you really not feel any worse about your decision?

Suppose in my generousness, I hold up a bag of cash and ask you to reach and draw out any bill blindly. Suppose you pull out a tenner ($10). I show you rest of the bag, which was all monopoly money. Don't you feel lucky? What if I show you the rest of the bag, which was all $100s? Don't you feel worse? Is that really so irrational?

Some people attempt to rescue expected utility theory by saying it's purely normative and not predictive. People ought to behave in this way, they tell us, even though people do not. But suppose you're a rational economics student, and you know full well that regret is "irrational", that you shouldn't let your utility be affected by alternative states that never happened. Does that actually eliminate your regret?

If it doesn't, is it really "rational" to pretend that your utility function is other than what it is? That is, should you say, "well, yes, I'm unhappy about not getting my trip to Venice, but since I know that the independence of irrelevant alternatives forbids my feeling disutility from it, I shall maximize my utility as if I did not."? That sounds more like psychosis than rationality. Is it even desirable never to feel regret?

Von Neumann-Morgenstern utility theory is an interesting tool, but when making real world decisions between important things, people should remember that it isn't actually entirely true.

[I know there are diehard defenders of v N-M theory, because I've gotten pretty angry email from you in the past. In any case, you can take heart that Rudyard Kipling is on your side. According to his poem "If", one of the conditions (sufficient rather than necessary, I think) for being a man is:

If you can make one heap of all your winnings
And risk it all on one turn of pitch-and-toss,
And lose, and start again at your beginnings
And never breath a word about your loss;]

"Dissentary" complains about Oxblog's lack of permalinks:

I'm very pissed that OxBlog thinks they're too good to have permalinks. I do, however, like this line of thinking . . .

Steve Dunn at Begging to Differ has an interesting post on Oberlin's Consent Tent-- essentially, from what I can tell, a school-sponsored sex-ed orgy, designed to educate people about how much fun you can have while still practicing safe sex.

Orginally, he concludes:

Now, I'm no Puritan, but surely a live demonstration of oral sex crosses some kind of line. It occurs to me that Oberlin College sponsors and endorses conduct for which ordinary people would be arrested and taken to jail. Perhaps it is time for serious reconsideration of the college's mission.

Incarceration is possible, but unlikely.

Of course, Oberlin would be in more trouble if they were faced with Indiana's nudity statute, which the Supreme Court upheld in Barnes v. Glen Theatre. Justice Scalia concurred there as follows:

The dissent confidently asserts that the purpose of restricting nudity in public places in general is to protect nonconsenting parties from offense; and argues that since only consenting, admission-paying patrons see respondents dance, that purpose cannot apply, and the only remaining purpose must relate to the communicative elements of the performance. Perhaps the dissenters believe that "offense to others" ought to be the only reason for restricting nudity in public places generally, but there is no basis for thinking that our society has ever shared that Thoreauvian "you may do what you like so long as it does not injure someone else" beau ideal -- much less for thinking that it was written into the Constitution. The purpose of Indiana's nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosierdome to display their genitals to one another, even if there were not an offended innocent in the crowd. Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, "contra bonos mores," i. e., immoral. In American society, such prohibitions have included, for example, sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy.

[Oberlin embodies a far-Left paradise of agitation, Marxist activism and sexual licentiousness. It is, in short, a model of the Left’s paradise. It is specifically for this reason that it resembles most traditional Americans’ version of Hell. ]

Debbie: . . . [Your play] was about did she have it off or didn't she. As if having it off is infidelity.

Henry: Most people think it is.

Debbie: Most people think not having it off is fidelity. They think all relationships hinge in the middle. Sex or no sex. What a fantastic range of possibilities. Like an on/off switch. Did she or didn't she. By Henry Ibsen. Why would you want to make it such a crisis?

Henry: I don't know, why would I?

Debbie: It’s what comes of making such a mystery of it. When I was twelve I was obsessed. Everything was sex. Latin was sex. The dictionary fell open at meretrix, a harlot. You could feel the mystery coming off the word like musk. Meretrix! This was none of your amo, amas, amat, this was a flash from a forbidden planet, and it was everywhere. History was sex, French was sex, art was sex, the Bible, poetry, penfriends, games, music, everything was sex except for biology which was obviously sex but obviously not really sex, not the one which was secret and ecstatic and wicked and a sacrament and all the things it was supposed to be but couldn’t be at one and the same time. I got that in the boiler room and it turned out to be biology after all. That’s what free love is free of—propaganda.
Henry: Don’t get too good at that.
Debbie: What?
Henry: Persuasive nonsense. Sophistry in a phrase so neat you can’t see the loose end that would unravel it. It’s flawless but wrong. A perfect dud. You can do that with words, bless ‘em. How about, ‘What free love is free of, is love’? Another little gem. You could put a ‘what’ on the end of it, like Bertie Wooster, ‘What free love is free of is love, what?’—and the words would go on replicating themselves like a spiral of DNA. . . ‘What love is free of love?—free love is what love, what?—’…

A random collection of interesting stuff from Freespace, which I haven't linked to in too long:
A review of Sarah McLachlan's hungrily-awaited new album. [Dilemma. The album doesn't come out for a few weeks in the UK. I would very much like to listen to it now, and I could buy the album on ITunes. But I would rather buy the physical copy of the album than buy it on Itunes and burn it to CD. If I had to rationally make the choice about myself a year ago, I would have said, "just wait a few weeks more," (and indeed, I've pre-ordered it on Amazon). But now that Sandefur can listen to it and I'm stuck listening only to "Fallen" and her previous CDs, my impatience is growing stronger. Somebody should rethink how discount rates really work.]

This post about how John Marshall liked Jane Austen.

And this post about the evils of CostCo (and since Sandefur's Libertarian creds are stronger than mine, it's not the objection you'd expect).

One other poem Michael Wood referenced yesterday-- a villanelle by W.H. Auden:

Villanelle

Time will say nothing but I told you so,
Time only knows the price we have to pay;
If I could tell you, I would let you know.

If we should weep when clowns put on their show,
If we should stumble when musicians play,
Time will say nothing but I told you so.

There are no fortunes to be told, although
Because I love you more than I can say,
If I could tell you, I would let you know.

The winds must come from somewhere when they blow,
There must be reasons why the leaves decay;
Time will say nothing but I told you so.

Perhaps the roses really want to grow,
The vision seriously intends to stay;
If I could tell you, I would let you know.

Suppose the lions all get up and go,
And all the brooks and soldiers run away
Will Time say nothing but I told you so?
If I could tell you, I would let you know.

William Saletan has tales from traffic court:

The judge looked at the pictures and the address. To my delight, he recognized the place instantly. "Is this the Bethesda lot, across from the Barnes & Noble?" he asked. The ticketing officer nodded. A wave of moral satisfaction surged through me as I realized that the judge knew about the scam. Without glancing up, he announced, "Guilty."

Dumbfounded, I asked, "Your Honor, if it's not a legal space, why did the county paint the lines there?" To which he replied: "I don't paint the lines, sir."(more)

Justice Janice Rogers Brown's nomination was approved by the Senate Judiciary Committee by a not-entirely-surpising 10-9 party line vote. This means Senator Arlen Specter must have sorted things out.

UPDATE: The Curmudgeonly Clerk also notes that Al Sharpton is urging his "fellow" Democrats not to filibuster. I find myself waiting for the punchline.

Incidentally JRBrown got the highest retention vote in the 1998 retention election in California (76%). Does anybody have any idea why?

Yes, I'm in a very Chicago-centric mood today. But oh well. The fifth edition of Frank Schulze and Kevin Harrington's Chicago's Famous Buildings is out. I wish I knew far more about this subject. The entry for the University of Chicago gives a good run-down of what's on campus, and is dotted with wonderful links, the most interesting of which is the third master plan. Read it. Discover what we're about to do for which our neighbors might curse us. It's interesting to me, but I make no claim to an unbaised opinion.

No, it has nothing to do with onions -- it's just a fancy word for "shopaholism," and the electronic edition of the Chicago Tribune has an article up (here, registration required) about the affliction (without the nifty terminology, alas). A sample:

"Much like those addicted to drugs or alcohol, shopaholics experience withdrawal symptoms such as irritability, depression and loss of control.

They also deny they have a problem, claiming it's normal to have 50 pairs of pants in the closet with sales tags still attached. In addition, some shopaholics suffer blackouts the way alcoholics do, [Indiana University addiction researcher Ruth] Engs said. They will return home not remembering how much they bought or what's in the shopping bags they carry.

And, as with other addictions, there may be an effort to conceal the problem."

In a Chicago case from a couple years back, Elizabeth Roach pleaded guilty to a charge stemming from her embezzling more than $240,000 from her employer. The embezzled money fueled shopping trips. The trial judge was more lenient to Ms. Roach than the 12 to 18 months in prison (among other punishments) called for by federal sentencing guidelines: along with a fine and restitution, he imposed six months of home confinement and six weeks of work release rather than a prison term. The judge noted that the embezzlement was motivated by compulsive shopping and depression.

The government appealed the downward departure from the sentencing guidelines, and a three-judge federal appeals panel found the trial judge’s leniency misplaced (in United States v. Roach (2002), 296 F.3d 565). They remanded the case back to the original judge for resentencing; he reluctantly complied, ordering Ms. Roach to spend 12 months in prison, though that sentence is stayed pending appeal. Neither depression nor oniomania was accepted by the appeals panel as a valid reason for reducing penalties for embezzlement. A defendant would have even less hope for leniency for embezzlement motivated by the need for money to feed a heroin or cocaine addiction: the federal sentencing guidelines (U.S.S.G. § 5K2.13) explicitly note that, while significantly reduced mental capacity could justify a "downward departure" from the prescribed punishment, this is not the case if "the impairment was caused by the defendant’s voluntary use of drugs or other intoxicants."

After Tuesday's mis-step, it is good to see that the Supreme Court has returned to hearing search and seizure cases that involve factually guilty defendants--and in a vice case, too! Oral arguments yesterday, according to this article (registration required) in today's Chicago Tribune, concern a rather singular type of police roadblock -- and a challenge to the roadblock by a man who was arrested and convicted of drunk driving. One day in 1997, a car struck and killed an elderly bicyclist in Lombard, Illinois, but the motorist was not identified. The following week, Lombard police set up a roadblock at the same time and place as the fatal incident, "in hopes of finding a driver who had been on the road the week before and could provide information about the crime..." What they found instead was a fellow with alcohol on his breath, and eventually, a Supreme Court case.

The Trib article does a good job of summarizing the arguments and even some of the legal precedents. I'll just note that we are back on familiar territory, where a judicial finding that a search is illegal will necessitate turning free a factually guilty (indeed, convicted) criminal. The Court might do it anyway -- the Illinois Supreme Court did -- but it would be a lot easier if the case were brought by one of the hundreds of innocent motorists who were intruded upon by that roadblock back in 1997.

The University of Chicago leads once more with cutting-edge research of vital importance to all of us: chatting with a pretty woman can raise men's testosterone level up to 30%. The more attractive a man finds her; the higher the level of testosterone in his saliva. (thanks to Patrick Belton for the link).

And guys--just remember what the winners of the 1998 Ignoble Prize in Statistics discovered.

Bobby Hatfield, of the Righteous Brothers, is dead. He died about thirty minutes before he was due to perform with his partner, Righteous Brother Tom Medley, and was inducted into the Rock and Roll Hall of Fame earlier this year.

The Righteous Brothers' best song is, without a doubt, the amazing "You've Lost That Lovin' Feeling," (1965). Tom Stoppard fans will remember that it's prominently featured in The Real Thing (along with Procol Harum's Whiter Shade of Pale and The Monkees' I'm a Believer; Neil Sedaka and Herman's Hermits also figure, but a little less prominently).

You can listen to two minutes of Righteous Brothers excerpts at this link.

Here's the Stoppard bit:

Max: This is sheer pretension.

Henry: (Insistently) No. It moves me, the way people are supposed to be moved by real music. I was taken once to Covent Garden to hear a woman called Callas in a sort of foreign music with no dancing which people were donating kidneys to get tickets for. The idea was that I would be cured of my strange disability. As though the place were a kind of Lourdes, for the musically disadvantaged. My illness at the time took the form of believing that the Righteous Brothers' recording of "You've Lost That Lovin' Feelin'" on the London label was possibly the most haunting, the most deeply moving noise ever produced by the human spirit, and this female vocalist person was going to set me right.

Max: No good?

Henry: Not even close. That woman would have had a job getting into the top thirty if she were hyped.

Max: You preferred the Brothers.

Henry: I did. Do you think there's something wrong with me?

Max: Yes. I'd say you were a moron.

Henry: What can I do?
Max: There's nothing you can do . . . (A)ctually, I remember it. (He sings, badly.) "You've lost that lovin' feeling . . ."

Henry: That's the idea-- aversion therapy.

Max: (Sings) ". . . that lovin' feeling . . . You've lost that lovin' feeling . . ."

Henry: I think it's working.

Max: (Sings) ". . . it's gorn, gorn, gorn . . . oh-- oh-- oh-- yeah . . ."

Henry: (Happily) God, it's rubbish! You've cracked it. Now do "Oh Carol."

NPR has just received a record-high donation of $200,000,000, more than twice its annual operating budget. Much as I've been known to criticize NPR's news coverage, I don't join in much of the blogospheric "NPR is evil" sentiment. Yes, it receives subsidies, but in a second-best-world I think tax money is better squandered on NPR than squandered on ethanol subsidies.

In any case, the folks at NPR are still trying to decide what to do with the windfall. The rational economic choice, if anybody's wondering, is probably to smooth consumption over time, invest the money, and use the interest each year to expand NPR's annual operating budget by 10-20 million or so. Similarly, if you win $100 in your office Superbowl pool, you're supposed to invest the money in an annuity or something and smile happily at the extra $5 yearly you've added to your annual income. Of course, as Richard Thaler says, "with windfalls like that, who needs windfalls?" Far more fun to splurge on something you never would have had the discipline to save for, nor the lack of discipline to borrow for. Do radio stations impulse-buy? We'll see.

[And there are also various reasons that NPR, being government-funded, might have to try to blow its windfall all at once. The government often lends additional money to prop up things that need it while cutting money from programs that can afford a loss. If NPR increases its operating budget by 15 million a year, the government might cut payments to NPR member stations and then tell them to give less to NPR. Etc.]

You are the blue line. You're a tough nut to crack.
Truth is, you're just plain weird. You hop
around town on a whim; you can't make up your
mind about anything. What you need is to settle
down for a minute or two. Take a deep breath
and you'll be fine.


Which Chicago 'El' line are you?
brought to you by Quizilla
(Via Drew Dir)

Thanks to Ruthie Hansen, I've just added another handful of blogs to the "Blog Chicago" link down toward the bottom of our sidebar. Just a reminder-- if you're at the U of C in any capacity and have a blog, no matter how weird or esoteric or rarely updated, send it along. If you don't want your blog identified by your name, I can do that too.

Austentatious is polling for people's favorite Jane Austen novels. If you have an opinion, get over there and vote, as this newly-minted Austen fan just did.

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

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

Remember, my concern was:

The Clerk cautions us that "one may as readily deceive via omission as by affirmative misrepresentation." But if that's so, then what exactly must I avoid deceiving my future partners about?

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

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

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

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

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

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

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

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

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

OK, this one roamed far afield....

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Brown: You made a statement that "you're obviously out of the mainstream, you clearly take positions that not even very conservative judges take." And you base that on this idea that I want to return to Lochner, that I said Lochner was rightly decided. I have never said that. In fact, in my cases I have actually said that to the extent that the Lochner Court was using the using Due Process Clause as a blanck check to simply insert their political views into the Constitution, that they were justly criticized. . .

Schumer: You don't agree with the holding of Lochner?

Brown: I think that I've been clear. I said that it is appropriately criticized to the extent that they were inserting their views into this case. Or into the Constitution, I guess. That's the issue.

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

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

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

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

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

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

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

Amanda Butler asked me if my reaction (which was depression) to the search case argued before the Supreme Court yesterday would change if the contraband were stolen (presumably) art and megacash. Hard to say -- depression is always a likely reaction for me, irrespective of the stimulus!

Let me start by mentioning that I do not have a good idea how the current case should be decided; I think that it will be decided in a manner that does not suppress the evidence, i.e. Mr. Pringle's arrest will be ruled to be valid. And to be honest, I suspect that this is the correct result to the narrow question of the validity of the arrest, even in the instant case involving drugs. If the police legitimately find contraband in a car and there are no reasons to suspect that some of the passengers are simply innocent fellow travelers, then arresting all of the occupants and sorting it out at the station or in court seems OK to me. I don't think that we want a situation where three people in a car can point fingers at each other, saying "it's not mine," leaving the police to walk away (though with the contraband, presumably). Simultaneously, however, I hope that the ruling doesn't make it easy to arrest passenger Grandma when driver grandson is found with a joint in his pocket.

But my depression stems from larger issues concerning the propriety of making drugs contraband, along with the nature of consent in so-called consent searches. I'll try this nifty "more" feature for the first time, so those readers already bored or enraged needn't plow any further...

No one thinks that it should be legal to steal altarpieces, so if the police find me in possession of a stolen altarpiece, absent other evidence of being an innocent possesor, they should be able to arrest me. But what if they find me in possession of a small amount of drugs? Well, as I indicated yesterday, I do not think that mere possession of drugs should merit an arrest.

There are many different considerations that lead me to the conclusion that drugs should be, at a minimum, decriminalized in personal use quantities. I have neither the time nor the inclination to go into these considerations in detail, but I will mention one that I believe often receives short shrift. Drug prohibition undermines policing, and there is a downward spiral that I think is unmistakable. The outline of this dynamic is as follows: The dearth of victims or complaining witnesses from drug transactions or possession necessitates questionable and sometimes illegal police tactics, as well as corruption. (It also renders it unnecessary to learn the traditional tools of good policing.) The continued failure of prohibition to display visible effectiveness in terms of reduced drug use leads to tougher sentencing provisions. The longer sentences interact with police and prosecutorial tactics, inducing informant testimony and plea bargains. Continued lack of success with ending drug use then leads to further legal changes to give the enforcement officials more tools (such as "drug free zones" or civil asset forfeiture), simultaneously emitting pressure for the slackening of Constitutional protections against government intrusions.

It was the prospect of the current case's contribution to this slackening that made me depressed. And what is the goal of all this activity, all these intrusive searches? To make it harder for some of our friends and neighbors to pursue their pleasure by consuming a substance that they want to consume.

OK, I have tried everyone's patience, while simultaneously providing but a schematic argument that can't be very convincing. Nevertheless, I'll switch topics for just a second, to address a second question: Why do people carrying contraband agree to be searched when asked by the police?

One possibility is that they might feel that their response is irrelevant, that they will be searched in any case and that things might go easier for them if they provide consent. They would certainly be justified in suspecting that a refusal to consent will not be the end of the matter. A common police tactic for those who decline a consent search is to bring in a trained dog to sniff around, on, and under the car, as such intrusions currently do not require probable cause or a warrant.

But more generally, it seems that the circumstances make it difficult for stopped motorists to say no – they might not even realize that the officer’s request can be refused. But even if in some sense they "know" that the request can be refused, they might still agree to a search, even though they would "prefer" not to. (Think of all the false confessions that are made!) It isn't all that hard to bend someone to your will, especially if you have a uniform and badge and gun. There's a fascinating working paper on this topic (available here) by Janice Nadler, "No Need to Shout: Bus Sweeps and the Psychology of Coercion."

So far as I'm concerned, Crescat writers retain the copyright to any posts they post on Crescat, and grant to Crescat Sententia/me a right to reproduce their post on the blog, to repost their post (with attribution) in future posts, or to otherwise quote or reference the post (with attribution).

The Washington Post thinks that Virginia Postrel's book is too upbeat. I, however, am still baffled by the fact that the author "might not be so confident that, for example, the proliferation of manicurists and beauticians will counterbalance the drain of jobs from the manufacturing sector."

Does he think that manicures are causing a manufacturing drain? Or simply that we're enduring a manufacturing sector drain, and that Postrel shouldn't be so upbeat, because aesthetics isn't going to solve the manufacturing problem?

If it's the former, well, that's just dumb. If it's the latter, that's unfair. You can't declare that an author is being all rosy-cheeked and bubbly about the market in aesthetics, and then criticize her for being too optimistic because she doesn't recognize the terrible manufacturing sector drain.

Link via Ed Cohn.

In addition to Ms. Lithwick's hilarious (if saddening) account of the latest judicial battle in the drug war, Slate also has this article on whether Congress can scrap the judiciary. Celebrity note: The article is written by one Rod Smolla, who is billed as "Dean of the University of Richmond School of Law". But he's more than that-- he's a first-rate First Amendment zealot/lawyer. In particular, he was the unsuccessful defense council who tried to convince the court that the Virginia v. Black cross-burning ban was unconstitutional.

I think Smolla's most famous exchange (and one that he didn't handle too well) was this one:

Smolla: What's the difference between a burning cross and a burning torch?

Justice: A hundred years of history.

Professor Leitzel, would your reaction change if a car with three passengers -- driver, riding shotgun, backseat passenger -- were stopped, the passengers asked if they minded the car being searched, consent granted by all three, and then within the car $250,000 and the wings of the Ghent alterpiece were found? I ask this partially because I think I know your thoughts on the legalization of currently illegal drugs.

Amanda Butler's post below on the Lithwick piece in Slate concerning drug arrests has depressed me. Or rather, contemplation of the likely result depresses me.

Search and seizure law, it seems to me (and others, as I vaguely recall), suffers from the relative invisibility of the "false positives". The cases alleging an illegal search (almost?) always arise from a factually guilty defendant attempting to suppress some evidence. The majority of people searched for drugs are not in possession of drugs, but as these people never become defendants, we don't hear their cases in court.

This biased selection of search cases means that the Court, in interpreting search and seizure law, is faced with the dilemma that by declaring a search illegal, a factually guilty person is likely to go free (thanks to the exclusionary rule). It wouldn't be surprising for Courts in such circumstances -- especially when reviled drug dealers are the defendants -- to be expansive in their interpretation of what constitutes a legal search. The result has been what law professor David Harris has termed, in the title of a 1998 article in the George Washington Law Review, the "Fourth Amendment's death on the highway".

On November 18, dear readers, I am going to be subjected to a fairly great interrogation on race, the state of Indiana, the law, current events, politics, and I-know-not-what-else. In preparation, I'm going to try to expand my news reading beyond its usual horizons-- my blogroll, The New York Times, Slate, and the Economist. Therefore, if you read interesting articles in unusual places, or if you have an interesting political blog post you'd like to call to my attention, or especially if you read anything at all about race-relations in the rural midwest, please send it all to my attention at wbaude@crescatsententia.org.

Many thanks.

Brett Marston, on Janice Rogers Brown:

Brown likes Lochnerism-lite. Good enough, Mr. Baude?

As I noted below, the problem for Democrats here is that Lochnerism-lite is pretty much in the mainstream.

Amy writes:

Now yellow has been adopted by Volokh guest-blogger Cori Dauber, whose posts are so shallow and abrasive as to make Clayton Cramer seem like a model of Volokhian reasonableness.

Please, Professor Volokh, make Cori go away. Permanently.

Tim Lambert has done in two dimensions what Lawrence Solum formerly did in one-- mapping our silly political compass test results onto a grid.

Of course, this now brings to my notice that I must have mis-reported myself to Professor Solum, as I'm erroneously classed with Unlearned Hand rather than Joshua Macy.

UPDATE: Fixed already!

Apologies to all, for my dearth of posting so far throughout the day, though I suppose that it's early yet in the states and my co-bloggers seem to be filling in the space much better than I could. Other than lunch, which was devoted to meeting with the estimable Josh Chafetz, the day has been spent reading Pride and Prejudice (for the first time), and activity far more important (and dare I say enjoyable) than blogging.

Posts to ensue.

Dahlia Litwick reports that the Supreme Court "the justices [were] smelling hypo-blood" while hearing a case on collective punishment: 1 car, 3 passengers, $763 bucks and 5 baggies of crack. Who do you arrest?

It seems that the hypos are more interesting than whatever holding results. As she concludes, "On and on it goes, with Forster more or less asking the court to adopt a per se rule that everyone on the planet should be arrested for drug possession, except her client, and Bair essentially asking for a per se rule that everyone on the planet can be arrested for drug possession, since it would be easier than actually investigating a crime." Bah. It's 9am and I'm drinking my coffee which has yet to kick in. Go read the funny parts.

The Chicago Tribune reports today (registration required) that the state will award eight $25,000 prizes to lucky winners. How to compete for one of the prizes? Sorry, you have to be one of the 8,000 Illinois State Lottery retailers; further, you have to show up to one of two "brainstorming" sessions, the purpose of which is "to generate ideas about how to perk up interest in state-run games-of-chance that have seen flat or declining sales in recent years." With the prizes, lottery officials expect 600 retailers to show up for the deadly dull proceedings. Without the excitement of a prize drawing, approximately zero retailers would show -- oops, that's not what the lottery spokeswoman said. According to the article, she figures that 'People will come anyway, but I think it will be probably better attended with added incentives.' "Probably"? (Can you just show up, register for the drawing, and leave? Are your chances of winning affected by the quality of your contribution to the brainstorming? What if you have really bad ideas, like putting up billboards in poor neighborhoods claiming that the residents could move from their street to easy street by playing the lottery? What, the Illinois State Lottery already did that?)

Not to worry, citizens of Illinois, it's not as if the money could be put to a better purpose: "The awards will come from a pool of up to $20 million in unclaimed prize money that the state can use to either promote the lottery or bolster school funding."

I don't think much will come from these meetings, which motivates me to make a suggestion. Why not hold a lottery for people who show up for a meeting to discuss how the lottery retailers' brainstorming meetings can be improved? A meta-meta-lottery!

Why is yellow such an ill-fated color for Volokh conspirators? Volokh watchers will remember that yellow was the color Clayton Cramer adopted for his unlamentedly brief stint at the Conspiracy. Russel Korobkin seemed poised to redeem the color, but he has largely gone silent (and perhaps disappeared for good?). Now yellow has been adopted by Volokh guest-blogger Cori Dauber, whose posts are so shallow and abrasive as to make Clayton Cramer seem like a model of Volokhian reasonableness.

Please, Professor Volokh, make Cori go away. Permanently.

Congratulations are due to Dan Drezner on his first Slate column (It's good).

I have arrived in New York, and have been rather occupied lately with the job and apartment hunt--hence the lack of blog posts. Many thanks to all of you who emailed me with suggestions for my apartment hunt--I will let you know how it goes.

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

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

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

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

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

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

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

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

He continues,

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

Whether our Supreme Court will accept these arguments remains unclear.

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

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

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

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

You are in hell and facing an eternity of torment, but the devil offers you a way out, which you can take once and only once at any time from now on. Today, if you ask him to, the devil will toss a fair coin once and if it comes up heads you are free (but if tails then you face eternal torment with no possibility of reprieve). You don’t have to play today, though, because tomorrow the devil will make the deal slightly more favourable to you (and you know this): he’ll toss the coin twice but just one head will free you. The day after, the offer will improve further: 3 tosses with just one head needed. And so on (4 tosses, 5 tosses, ….1000 tosses …) for the rest of time if needed. So, given that the devil will give you better odds on every day after this one, but that you want to escape from hell some time, when should accept his offer?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From the AP:

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

Sad, indeed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

They're suing.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We make forks to eat food with. I could, like Ariel, use a fork to brush my hair if I wanted to, but that's not what forks are for. They are not designed to get nasty tangles out of my hair, and I'll probably end up in a lot more pain and with a lot less hair than if I used a tool that is made for that purpose, namely a hair brush. Similarly, you can use marriage for other things, but as an institution, it's designed to be the foundation of the family, and using marriage for other reasons can also cause problems. For example, if I marry only for love, when I fall out of love with my husband, I have to go through all the headache and heartache of a divorce, or maybe, if I have a problem with divorce (which, unsurprisingly, I do), I feel guilty, conflicted and generally miserable, struggling not to break my vows even though the reason my marriage existed in the first place is no longer motivating.

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

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

Many thanks to Will and the other CSers who have been kind enough to invite me onto their virtual stage this week. My home at Vice Squad owes its tenuous existence to the example of CS and to the advice and encouragement of Will Baude, in particular. You CSers have a lot to answer for!

And I should thank my provocative predecessor as guest CS blogger, Sara Butler, for providing a natural jumping-in point via her posts (the most recent here) concerning pornography...

One element that is almost strangely missing in the current pornography discussion is the policy dimension. Last week "all the people" of the United States were called upon by our President to celebrate Protection From Pornography week (or was it Protection For Pornography week? -- I get confused so easily --) "with appropriate programs and activities." (I trust that you all lived up to our President's exhortation…or do I need to have a word with the Attorney General?) But nary a peep about new legislation, no attempt to go after Playboy at 50 or to signal our rectitude by prosecuting Larry Flynt again. For that matter, there were not even any calls (at least that I heard) for more private controls, more boycotts of sexually explicit materials by hotel chains or Internet Service Providers.

The US has lived through an enormous increase in the availability of pornography in the last 50 years, and has managed, on the whole, to do so rather smoothly (though this general pattern is of little solace to those unlucky few who have managed to catch the eye of the prosecutors.) (A similar evolution has taken place in the case of gambling, I would contend.) The Republic has survived, and for all the hand-wringing, has suffered little in the way of demonstrable harm. At the same time, for some individuals and families, the enormous easing of access to pornography, particularly via the Internet, has been devastating. (This is a common occurrence: when a new "drug" is introduced into a society that has not developed control mechanisms, the consequences can be disastrous -– distilled alcohol is a repeated case in point.)

Much of the old system of pornography control was social, the fear of running into your boss at the adult video store or of simply having to deal with a sales clerk. The Internet eliminates those controls, and under the new regime of private, more-or-less anonymous access, some pornography consumers have been found to be wanting in self-control. (For information on internet pornography addiction, from a bit of a religious angle, click here.) There might be private and public policies that can help potential or actual Internet porn addicts, without imposing costs upon those who are comfortable with their level of porn consumption (or production). A policy that is not infrequent in the case of gambling is a voluntary personal ban, wherein people can precommit to not being given access to virtual or non-virtual casinos; such voluntary bans might help in the case of Internet pornography, too. You could even imagine screen access to such a commitment popping up after every half-hour logged into a porn site -– OK, that might impose some small costs on "rational" porn consumers. Such measures might be adopted voluntarily, though I would not oppose on principle (though perhaps I would on grounds of expediency) legislation that would require porn sites to provide some such bolsters to self-control. Of course, the porn sites themselves and the government are not the only "paters" capable of providing paternalistic policies. Consumers themselves might try other types of precommitment, by eschewing Internet access or by installing timers that limit Internet surfing hours.

Much more can be said, but this initial post is already too long! I’ll close by noting that the lack of interest in policing adult pornography might prove short-lived. Furthermore, the legal tools to suppress smut are already in place -– once sexually explicit material is construed to be obscene, it loses the standard First Amendment protections. Given the historical record of about-faces in vice policies, our current porntopia might not last all that long. Might we return to the situation of a few decades ago, when a novel like Lady Chatterley's Lover, completed in 1928, was not legally circulated in the US for more than thirty years?

Even casual readers of this blog may be aware of Will's crazed anti-comments crusade. But what you may not know is that there's a dirty little secret behind Crescat Sententia's lack of comments--they could be enabled on a post-by-post basis. Yes, that's right, it would require a mere mouse-click to allow those Crescat posters who liked comments to have them, while nevertheless keeping Will's own posts pure.

Ah, but that would offend Will's aesthetic sensibilities. After all, his holy war--like all holy wars--is premised on the belief that he knows best, not merely for himself, but for everyone. And as a result, even those Crescat contributors who might like to have comments enabled on their posts--not that I'm saying there are any, and if they were, they'd probably be keeping silent for fear of retribution--find themselves out of luck. Yes, that's right--the infamously libertarian Will refuses to permit any deviation from his iron-fisted rule. No decentralized, let-private-agents-decide fluff for him, no sir!

If you readers are bothered by this--either by the lack of comments or the heavy-handedness of its implementation--then please do let our fearless leader know. Drop him a line at wbaude@crescatsententia.org and demand that he unshackle the chains and allow just a little bit of freedom in his corner of cyberspace.

Another week brings with it another guest-blogger. This week, we're honored to offer our stage to Jim Leitzel, a Senior Lecturer at the beloved University of Chicago, and also the blogger at Vice Squad, the premier stop for vice news and thoughts.

Expect his always-insightful posts throughout the week.

I've devoted about six sheets of paper and too much time to trying to solve this Crooked Timber puzzle:

You are in hell and facing an eternity of torment, but the devil offers you a way out, which you can take once and only once at any time from now on. Today, if you ask him to, the devil will toss a fair coin once and if it comes up heads you are free (but if tails then you face eternal torment with no possibility of reprieve). You don’t have to play today, though, because tomorrow the devil will make the deal slightly more favourable to you (and you know this): he’ll toss the coin twice but just one head will free you. The day after, the offer will improve further: 3 tosses with just one head needed. And so on (4 tosses, 5 tosses, ….1000 tosses …) for the rest of time if needed. So, given that the devil will give you better odds on every day after this one, but that you want to escape from hell some time, when should accept his offer?

Chris Geidner at En Banc has a funny post about lawyers before the Supreme Court who have trouble keeping names straight. And as he notes, it happens even to the best of them. In March, I recounted this exchange with Solicitor General Ted Olson during oral argument for US v. American Library Association:

Olson: Justice Scalia-- I mean, Justice Souter--
Souter: You do me a great honor but I--
(laughter)
Souter: I am Souter.
Olson: I think I was expecting the next question.
(laughter)
Scalia: I wasn't even leaning forward.

In response to Adam White's "good but unconstitutional law" challenge, certified liberal Matthew Yglesias steps up to the plate, with some good replies.

Many readers will be familiar with an old Philosophy 101 identity conundrum, wherein Oedipus wants to marry Jocasta, but Oedipus does not want to marry his mother. Since Jocasta is his mother, we can conclude that just because Jocasta is the same person as Oedipus's mother, you can't just substitute them for one another willy nilly in any true proposition to get another true proposition. (In this case, I guess, because the word "want" entails certain assumptions about knowledge?).

Anyway, without necessarily meaning to, Sky TV has updated this conundrum for the reality T.V. millenium. Six reality T.V. contestants willingly kiss and fondle "Miriam." These six contestants are not willing to fondle a pre-operative transsexual. Boy are they mad.

PinkDreamPoppies has the details here.

UPDATE: An Ampersand commenter raises an interesting issue. The reality TV contestants are suing for sexual assault on the grounds that they didn't consent to fondle/be fondled by a person they perceive to be a man. Suppose they lose (though this isn't necessary).

What sort of rules of consent, knowledge, and identity govern the following case?:

Oedipus wishes to have sex with Jocasta.

Oedipus does not wish to have sex with an HIV+ partner.

Jocasta is HIV+.

Oedipus wishes to have sex with Jocasta.

Oedipus does not wish to have sex with his mother.

Jocasta is his mother.

Oedipus (20) wishes to have sex with Jocasta.

Oedipus does not wish to have sex with a girl under the age of 16.

Jocasta is 13.

At reader request, I've just changed the RSS Template so that the feed includes full posts instead of extracts. Apparently this will make those of y'all who use news aggregators happy. (Thanks to Douglas Calvert for showing me how to do this).

UPDATE:

There. It should really have worked this time.

Vice Squad's Jim Leitzel has an interesting report on child sex scholar Judith Levine's talk in Chicago (and also references some previous posts of mine on the subject). In that vein, I pass along this story from CNN:

LOS ANGELES, California (AP) -- Three high school students were expelled for making a sexually explicit video that was distributed around their private school.

The video was made last spring by a sophomore girl and two junior boys, who were not identified by officials with Milken Community High School. Two of the three students involved thought the video was recorded only for a small group of friends, said school head Rennie Wrubel.

"They thought they were just doing it for fun," Wrubel said. "And then it showed up in school."

The video was discovered by parents and the school when a boy who watched it told his parents last month. Wrubel said all known copies have since been destroyed.

The school in the Santa Monica Mountains in northwestern Los Angeles, affiliated with the Stephen S. Wise Temple, planned to invite counselors and experts to campus to talk with students about sex and relationships.

Previously, I blogged several reader responses to laws that are both desirable and unconstitutional.

Now Adam White and Christine Niles say those answers don't really count, since "none of them identified realistic, ongoing policy debates," and "none of the replies reflect any 'deeply held' political values, the sort that pose gut-wrenching struggles between the soul and the mind, as the abortion issue poses to many federalists."

This seems a little unfair. Some of the suggestions (The line-item veto, The Religious Freedom Restoration Act) aren't policy debates precisely because the Supreme Court has already held them unconstitutional. [And unlike Roe foes, supporters of the Line Item Veto hold out little hope of appointing court that will change its mind.]

I mean, some of the policies that my liberal readers have suggested have been so clearly unconstitutional that they're simply not part of the political debate any more. It seems a little unfair to say that they therefore don't count because they're not on the table. Maybe the fault lies with Republicans for continuing to champion things (like a federal abortion ban or gay marriage restrictions) that they should just give up on.

[Anyway, if it helps, I tentatively think that the Do-Not-Call list for telemarketers is a good idea, but probably unconstitutional. I don't know if Mr. White counts me as a liberal, though. I also had a discussion earlier this year with a liberal friend who thinks that the IOLTA funds accounts at issue in Brown v. Legal Foundation of Washington were both a good idea (they siphoned off interest from client accounts to pay for lawyers for the needy) and an unconstitutional taking under the 5th Amendment.]

Look, there are lots of good ways to indict the "Living Constitution" crowd. I've done so myself a number of times. But when people rise to a challenge, you can't just say "that doesn't count," and change the rules of the challenge until you get the result you wanted in the first place. That's something they might do.

UPDATE:

Yglesias takes the case.

Well, The New York Times writer and his wife seem to have had a better trip to Chicago than New York Timers usually do. Then again, if I had $500 a day to entertain myself, I could probably have a pretty good time too.

The Frontera Grill and Lou Mitchell's are perfectly reasonably ways to pass one's early-day meals, though Lou Mitchell's (an old-fashioned breakfast diner) is best-suited to decadent Sunday Mornings after some particularly harrowing or hair-raising weekend ordeal, and Frontera Grill's dinners are also fabulous. The only trouble is that they don't take reservations, so the wait is usually about two to three hours. Bring a very charming dinner companion.

They also saw some good theater, including "The Goat, or Who is Sylvia?" I have received intelligence that Professor Leitzel's also seen this production, so I'm waiting for a review from him.

They seem to have had some trouble getting a late dinner. On the one hand, I sympathize with Chicago's tendency to close down early, I really do. On the other hand, my supermarket in Cambridge closes at 5 on Sundays.

Incidentally, for future reference, Brasserie Jo is open until 10, and the food doesn't get worse late in the evening.

As my guest-blogging gig at Crescat Sententia draws to a close, I'd like to thank all you lovely readers and, especially, my lovely hosts for having me. It's been great fun, and I do hope some of you will come visit me at my permanent blog-home, Diotima.

Will for some odd reason is under the misconception that human institutions do not have purposes beyond what you or I may decide we want to use them for. But most instruments are designed to perform a specific task, and I'm really not sure why conventions like dating and marriage are any different.

We make forks to eat food with. I could, like Ariel, use a fork to brush my hair if I wanted to, but that's not what forks are for. They are not designed to get nasty tangles out of my hair, and I'll probably end up in a lot more pain and with a lot less hair than if I used a tool that is made for that purpose, namely a hair brush. Similarly, you can use marriage for other things, but as an institution, it's designed to be the foundation of the family, and using marriage for other reasons can also cause problems. For example, if I marry only for love, when I fall out of love with my husband, I have to go through all the headache and heartache of a divorce, or maybe, if I have a problem with divorce (which, unsurprisingly, I do), I feel guilty, conflicted and generally miserable, struggling not to break my vows even though the reason my marriage existed in the first place is no longer motivating.

The added wrinkle is that misusing institutions like marriage and courtship don't just affect the immediate people involved. If I decide to brush my hair with a fork, the only one who's going to get her hair pulled out is me. But with human instutitions, which we create and maintain, misusing them also changes them, corrupts them. Which is why we now have so many people dating and marrying for the wrong reasons. Now, good Burkean that I strive to be, I'm all about organic change. But when institutions change, the purpose should stay the same while the shape of the insitution shifts to better support that purpose in a new set of circumstances. So, for example, courtship practices have varied widely over time. It used to be that a young man would have to wait for an invitation from the young lady or her family before he could call on her. Courtship switched to being initiated by men when it moved outside of the home and required money, which men had and women didn't. But the purpose remained the same: finding someone to marry. The kind of change we've seen more recently has been different; it's a corruption from the inside out as people use the same old institutions to pursue their own incorrect purposes.