The people who organize Veteran's Day Parades do so to honor veterans. When you decide to stop doing that, it stops being a Veteran's Day parade, and just becomes a pro-war parade that happens to be held on Veteran's Day.

I'm not arguing that this group had a "right" to participate: it was, after all, a private parade. I do, however, think that men and women who have served their country deserve, at the very least, to have their voices heard on the day dedicated to them. They've earned that much, if not more.

PG offers this as well:

It is contradictions of one's understood purpose that I am protesting. I would never attempt legal action to make the VFW associate with vets whose views the VFW found objectionable. I do, however, attempt moral rhetoric to make the VFW understand why they appear to be contradicting their own purpose.

As I understand it, Veterans Day honors our nation's veterans. It is not intended to honor the particular wars in which they fought. Indeed, I consider it necessary to remove consideration of the particular wars so we can honor all veterans regardless of the justice of the war in which they fought.

I think the VFW is very, very wrong not to see that one can "hate the war and love the soldier." This is what I was addressing in my comment and post. An organization that claims to be for veterans yet cannot encompass this understanding is a lousy organization.

The central problem with these sorts of conclusions is that they do not appear to be supported by the facts whatsoever. Their entire position is built on a counterfactual hypothetical scenario that does not in any way resemble the facts as they actually unfolded.

As near as I can tell from the press account, the VFW was not marching in support of the war at all. The parade offered no opinion on the war and was not organized to do so. It was just honoring veterans in general. It was unconnected with and apparently adopted no position on the present administration's military campaigns.

This is typical of Veterans Day parades. They generally espouse no political positions. Veterans of all stripes and beliefs are allowed to march in them. They are not celebrations of the current war, any other war, or war in general. In short, the VFW was not conveying a message about the present war one way or another. The event's sole focus was on honoring and supporting veterans.

The anti-war veterans showed up to this parade, but they were not content to merely honor and support veterans. They had a dual message: that they supported the veterans and were against the war. It was the anti-war veterans that showed up with an additional unwanted and controversial political message. This was bound to provoke, as the war is a contentious issue. Moreover, by injecting a subject matter into the parade that had nothing to do with the event, these anti-war veterans were effectively transforming an apolitical parade into a political march.

Mind you, the VFW did not exclude anti-war veterans from the parade simply because they, in good conscience, oppose the war. It excluded anti-war veterans who attempted to transform a simple procession honoring veterans into a platform for propagating views that the VFW did not care to convey and for which the parade was not organized. Although it is obvious from the VFW leaders quoted in the article that they find the anti-war position to be contemptible, a careful reader will note that nothing in the story indicates that the VFW was leading a pro-war parade.

So when Ampersand and PG complain of the VFW's failure to abide by its mission (of honoring veterans) or of excluding veterans with certain viewpoints from the parade, their criticism is wildly off the mark. Like all national holidays, Veterans Day is a non-partisan affair. We do not use occasions like it, Memorial Day, or the Fourth of July to make partisan political points or engage in contentious moral disputation. We do not do so precisely because such rancorous debates have no place on an occasion that is for Americans of all creeds. Veterans Day is indeed about honoring veterans, so why couldn't these anti-war veterans content themselves with doing so, rather than using the occasion to fulminate on a controversial issue at a venue devoted to an entirely different apolitical event?

This is the proper context for considering the VFW's expulsion of the anti-war veterans. There is nothing "despicable" (Ampersand's original description) about refusing to allow others to transform an apolitical event into a political one, particularly when the political position being advanced is one that the VFW does not agree with and does not care to endorse. To argue that the VFW is in the wrong on this matter, one has to essentially believe that it has no right to object to the naked politicization of its events, and that it has no right to not advance a political position that it finds distasteful. This wrongheaded condemnation of the VFW is what led me to criticize Ampersand's and PG's position in the first place.

Doesn't look good so far-- 543,211 to 506,901 (Blanco leading) with 3/4 of the precincts reporting . . .

UPDATE: 589,789 to 543,876 . . .
UPDATE AGAIN: That's pretty much that.

How to find the results of today's contests:

Jindal v Blanco:
No precint has reported yet. Polls close at 8p. Thanks to Oxblog for the link.

#3 LSU at Alabama:
Kickoff is at 6:45pm EST.

Bobby Jindal is everywhere-- even in the acknowledgments of books by Ronald Dworkin.

Some time ago I bashed this Dinesh D'Souza piece on Kantians against Atheism. It turns out Dennett's defended himself too, shortly and sweetly.

[Not that I intend to defend this whole nonsense about renaming atheists "brights"]

This week's New York Times contains a glowing review of Gabriel Garcia Marquez's autobiography (for sale in the sidebar over there), which is hopefully going to be the first of a trilogy (if he holds out against cancer for long enough). I'm only part of the way through it, but it's enchanting so far.

I saw it in the bookstore and told myself that it was too expensive to buy right now. Then I read the first three or four pages while standing there and told myself it was only money.

One note: I think that those who have read a lot of Marquez's other work-- especially Love in the Time of Cholera (his best), and 100 Years of Solitude-- will get a lot more out of it. In other words, this is the deep end.

This week's Ethicist column contains the following dilemma:

I am a physician. A school-bus driver admitted to the E.R. was agitated, paranoid and threatening, and his urine was positive for recent cocaine use. Over the next six months, he was admitted twice more in a similar condition. I told him that his cocaine use could endanger his passengers; he shrugged it off, saying that he uses only during his off hours. I refused to sign a form giving him medical clearance to return to driving and still consider him a threat to the kids. The hospital lawyer said I could not report him to his employer, citing patient confidentiality. What do you think?
Anonymous, Connecticut

Physicians should be loath to violate patient confidentiality. A person is unlikely to seek medical care if doing so means he'll lose his job or receive a visit from the cops. You should breach confidentiality only if your patient presents a serious, imminent threat to himself or others and if there is no gentler way to deter that threat. Alas, you seem to be in such a situation....

Is it disrespectful to America's troops to oppose the War in Iraq? Is it disrespectful to make one's opposition public, marching about with leaflets? Is it disrespectful to our veterans to use a day for the celebration of veterans as a platform for advertising one's disagreement? These, are, I think hard questions, and ones on which reasonable people can disagree.

In fact, reasonable people are dis-agreeing. At issue is a Veterans for Foreign Wars parade where the VFW kicked out a couple of anti-war veterans groups. Ampersand says that it's despicable. PG says that it's definitely legal, but that it's "a denial of their own stated mission". Our guest The Curmudgeonly Clerk writes that the right to not associate or to not speak "is essential to the preservation of a fundamental right, not some mere legal technicality," and "It would be authoritarian to require the VFW to involuntarily adopt, associate with, or distribute a political or moral message with which it disagreed." Unlearned Hand thinks The Clerk's argument is "not... fair or honest to the points that Ampersand and PG were really making. . . . The point they are making is very simple: it seems strange, and perhaps morally wrong, to organize a parade ostensibly to celebrate veterans and then exclude particular veterans because they oppose the current war. "

Take a deep breath.

All right. I think The Clerk's point is more relevant than Unlearned Hand gives him credit for. Yes, it's true that the VFW haven't violated anyone's constitutional rights, and everybody seems to concede that. As The Clerk further points out, not only have the VFW not violated anybody's rights, but anybody who tried to make them do otherwise would be violating theirs. That's not inherently dispositive, of course-- there are lots of despicable things one can do by exercising one's First Amendment rights. But it should at least stop one to think. Why do we think it's a good thing to protect the rights against compelled speech and association? Because we think it's very important to be able for private people and bodies to pick what they want to say and how exactly they want to say it.

Now it seems to me like the "this is despicable" criticism must therefore be divided into one of two broad groups. Either it's bad to exclude the anti-war groups from the parade because excluding them isn't really related to the message of honoring veterans on Veterans Day, or it's bad to exclude them because whatever belief the anti-war veterans oppose is wrong on the merits.

PG writes that this was "a denial of their own stated mission." Ampersand writes "it's not about honoring veterans, as it claims to be. It's about honoring veterans with 'patriotically correct' opinions." Both Ampersand and PG miss the VFW's point. The VFW thinks that opposing the war on Veteran's Day isn't "honorable" to veterans. This isn't a denial of their mission, it's just that Ampersand and PG don't like the VFW's interpretation of its own mission.

Now, the VFW hasn't (so far as I know) explained why it thinks that opposing the war is dishonorable to those who fought in it and other wars, but I think it has two good arguments. The first is that it's generally disrespectful to hijack one cause's celebration for another. Just as it's wrong for the anti-war folks to use a Valentine's Day parade to publicize their anti-war views, or the KKK to use a July 4th parade to spread a message of hatred, the VFW could reasonably believe that the presence of anti-war groups will attract attention to the wrong parts of the event. (The VFW wasn't, so far as I know, kicking out veterans who happened to be anti-war but were marching in other parts of the parade. It only kicked out those groups whose very purpose/message was anti-war).

I'm not sure how strong this argument is as applied here-- it depends a lot on the precise facts. But there's a second argument the VFW can make-- that it's disrespectful to oppose the war on a day of remembrance for our veterans, that it's not a legitimate way of honoring them at all. Look, the VFW could say, you may oppose this war, you may oppose a lot of wars, but this is what a lot of our veterans gave parts (or all) of their lives to, this is what we're honoring them for having done. To say that the mission itself was not a worthy one cats a pall and a shadow on all that they've acheived, it says that while they may have been worthy men they didn't complete worthy ends. That's not the way we want to honor our veterans and we aren't going to do it that way. If you want to do it your own way, have your own parade.

Now, this is a very controversial and interesting position, and I'm not sure I agree with it myself, but it's a perfectly reasonable position for VFW to have, and I don't think it's "despicable" at all. And this gets back to the Curmudgeonly Clerk's argument, which is more relevant than Unlearned Hand gives it credit. The rights to not speak and not associate are important not just because they're things we have to do because the Constitution says so. They represent values that we ought to support. You can and should feel free to disagree with the VFW's opinion on the merits, but you shouldn't disagree with the way they've chosen to express that opinion.

And the opinion that anti-war is anti-veteran is certainly arguable, and possibly even wrong, but I, for one, think it's going overboard to suggest that it's "immoral". (Especially if the VFW (rightly) thought that other veterans would be sickened or hurt by the anti-war displays-- one such veteran is quoted in the FTU article).

UPDATE:

Unlearned Hand, in a new post, makes much too much of my comment that "You can and should feel free to disagree with the VFW's opinion on the merits, but you shouldn't disagree with the way they've chosen to express that opinion."

Let me rephrase what I said far too clumsily. Ampersand's, PG's, and Unlearned Hand's disagreement with the choice to kick veterans out of the parade amounts to disagreement with the substance of VFW's position. Indeed, it's rare (but not unheard of) that people seriously criticize the way somebody has chosen to express their opinion unless they also disagree with some part of that opinion themself.

Unlearned Hand drags out example after example, The Klan, Nazis, etc., and there's nothing wrong with criticizing those terrible things but what makes cross-burning and Nazi marches despicable isn't the fact that they involve burning pieces of wood, or marching up and down the street. What makes this despicable is what they're saying. So what I was trying to say above, and will here reiterate, is that this argument should rest on the merits of the VFW's opnion about respect and the war. Hopefully we can all agree that if the VFW's position were correct-- if they were, say, a black pride march keeping the KKK out-- that there would be no problem.

This brings us to Unlearned Hand's other error. I wrote, ". . . you shouldn't disagree with the way they've chosen to express that opinion." (emphasis new). I may not have made this clear enough (though I hoped I had), but I don't mean to generalize that claim to all claims. There are plenty of examples of acceptable messages being conveyed in despicable manners-- but the examples that Unlearned Hand gives aren't (his examples all involve despicable messages). But we could come up with some if we wanted.

In other words, kicking people out of a parade because they don't support what the parade does is a perfectly reasonable thing to do. Thus, in this case what should be at issue is whether or not the message of the parade (and the VFW's decision about who supported that message) was correct, incorrect, or despicable.

This isn't because I hold some mysterious Anti-First Amendment principle like the one Unlearned Hand made up, it's because this particular means is perfectly reasonable, it's the end that's (rightly) up for debate.

Personally, I think VFW's decision might be correct or incorrect, but it probably isn't despicable. If others disagree then let's move the debate to the merits, and get away from the red herrings.

TALLAHASSEE—A group of 30 military veterans critical of the war in Iraq hoped to use Tuesday's Veterans Day parade to call attention to the increasingly deadly conflict but instead found themselves fighting for something much more fundamental.

* * *

Parade chairman Ken Conroy, a Korean War veteran, said he ejected the anti-war veterans because they were offensive and because Tallahassee police also wanted them removed. He offered to refund their $10 registration fee and said he was not suppressing the group's free speech rights.

"They can have their free speech, just not in the parade," Conroy said. "They belong on the sidewalk."

* * *

Tallahassee police Sgt. David Folsom denied police played any role in the situation and said Tuesday was the first time he could recall anyone being excluded from the parade.

* * *

"We don't care where they are, as long as they're somewhere else," said Charles LeCroy, an Air Force personnel superintendent in Vietnam and second vice commander of American Legion Post 13 in Tallahassee. "It's disrespectful, that's what it is, and I just can't stomach or tolerate or conceive of it."

It is pretty clear that these folks were thrown out precisely for the views that they were espousing. What's less clear is at whose instigation the ejection occurred. The police deny any involvement. Given that the VFW officials have envinced general contempt for the ejected veterans, the assumption that it was they rather than law enforcement authorities who were behind the expulsion does not tax the imagination.

Of this brouhaha, Ampersand writes that it is "despicable." PG concedes that the VFW's conduct is legal, but declares that its legality does not make it right. I think that both are incorrect. Although I am firm believer in broad, nearly absolutist free speech rights, both Ampersand and PG are overlooking necessary corollaries of our constitutional speech rights—freedom of association and freedom from compelled speech. PG's argument about legality misses the point by failing to notice that this is a situation in which multiple parties claim to enjoy speech rights at the same venue. The First Amendment provides a clear solution to this conflict, one which is essential to the preservation of a fundamental right, not some mere legal technicality.

Perhaps, the best case to illustrate the point that I am trying to make is Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995). The case revolved around the exclusion of gay individuals from an ethnic pride parade who wished to march identified as gay members of Irish ethnicity. Notwithstanding a state public accomodations law, the Court held the exclusion to be constitutional for reasons that are equally applicable to the Veterans Day parade. Writing for a unanimous Court, Justice Souter opined:

The issue in this case is whether Massachusetts may require private citizens who organize a parade to include among the marchers a group imparting a message the organizers do not wish to convey. We hold that such a mandate violates the First Amendment.

* * *

In the case before us, however, the Massachusetts law has been applied in a peculiar way. Its enforcement does not address any dispute about the participation of openly gay, lesbian, or bisexual individuals in various units admitted to the parade. Petitioners disclaim any intent to exclude homosexuals as such, and no individual member of GLIB claims to have been excluded from parading as a member of any group that the Council has approved to march. Instead, the disagreement goes to the admission of GLIB as its own parade unit carrying its own banner. Since every participating unit affects the message conveyed by the private organizers, the state courts' application of the statute produced an order essentially requiring petitioners to alter the expressive content of their parade. Although the state courts spoke of the parade as a place of public accommodation once the expressive character of both the parade and the marching GLIB contingent is understood, it becomes apparent that the state courts' application of the statute had the effect of declaring the sponsors' speech itself to be the public accommodation. Under this approach any contingent of protected individuals with a message would have the right to participate in petitioners' speech, so that the communication produced by the private organizers would be shaped by all those protected by the law who wished to join in with some expressive demonstration of their own. But this use of the State's power violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.

"Since all speech inherently involves choices of what to say and what to leave unsaid," one important manifestation of the principle of free speech is that one who chooses to speak may also decide "what not to say." Although the State may at times "prescribe what shall be orthodox in commercial advertising" by requiring the dissemination of "purely factual and uncontroversial information," outside that context it may not compel affirmance of a belief with which the speaker disagrees. Indeed this general rule, that the speaker has the right to tailor the speech, applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid, subject, perhaps, to the permissive law of defamation. Nor is the rule's benefit restricted to the press, being enjoyed by business corporations generally and by ordinary people engaged in unsophisticated expression as well as by professional publishers. Its point is simply the point of all speech protection, which is to shield just those choices of content that in someone's eyes are misguided, or even hurtful.

* * *

. . . The message it disfavored is not difficult to identify. Although GLIB's point (like the Council's) is not wholly articulate, a contingent marching behind the organization's banner would at least bear witness to the fact that some Irish are gay, lesbian, or bisexual, and the presence of the organized marchers would suggest their view that people of their sexual orientations have as much claim to unqualified social acceptance as heterosexuals and indeed as members of parade units organized around other identifying characteristics. The parade's organizers may not believe these facts about Irish sexuality to be so, or they may object to unqualified social acceptance of gays and lesbians or have some other reason for wishing to keep GLIB's message out of the parade. But whatever the reason, it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government's power to control.

* * *

. . . Without deciding on the precise significance of the likelihood of misattribution, it nonetheless becomes clear that in the context of an expressive parade, as with a protest march, the parade's overall message is distilled from the individual presentations along the way, and each unit's expression is perceived by spectators as part of the whole.

* * *

. . . When the law is applied to expressive activity in the way it was done here, its apparent object is simply to require speakers to modify the content of their expression to whatever extent beneficiaries of the law choose to alter it with messages of their own. But in the absence of some further, legitimate end, this object is merely to allow exactly what the general rule of speaker's autonomy forbids.

Id. at 559, 572-75, 577-78 (internal citations omitted).

As in Hurley, this was a privately organized (VFW) parade. Accordingly, the organizers were entitled to exclude any message that they did not wish to convey or with which they did not care to associate. What I think that Ampersand and PG fail to understand is that this situation is not about whether the VFW was entitled to squelch those with whom it disagrees. Rather it is about whether these protesting veterans could impose their speech on those who do not share their views. It is about whether the VFW could be compelled to convey a message that it finds offensive and distasteful.

Consider their criticism. PG writes:

However, the private group was nonetheless engaged in a form of censorship, as well as a denial of their own stated mission. As Ampersand put it,

I think it's scummy to hold an event honoring American veterans and then kick out a bunch of veterans who were peacefully marching because you don't agree with their political opinions. It suggests that the parade was organized in bad faith; it's not about honoring veterans, as it claims to be. It's about honoring veterans with "patriotically correct" opinions.

What this criticism fails to appreciate is that, as the speaker, it was the VFW's right to define its purpose and message, to decide what it would and would not say. It is not for Ampersand and PG to do so anymore than it was for the anti-war veterans to decide. This was not a march and counter-march, protest and counter-protest, or demonstration and counter-demonstration. Rather this was one unified event organized under the auspices of a single organization. It was entirely within the rights of the VFW to exclude marchers who wished to put forward the dual message of support for veterans and non-support for the Bush administration's Middle-Eastern military campaign. But more importantly, it would be a violation of the VFW's rights to require it to do otherwise. These anti-war veterans simply had no right to compel the VFW to endorse their message or provide a venue for its propagation.

It is difficult to overstate the importance of our freedom from compelled speech and association. Our ability to refrain from endorsing political or moral positions antithetical to our beliefs (or to refrain from speaking at all) is every bit as fundamental to our rights under the First Amendment as the right of free speech. Indeed, these are aspects of free speech that are, in reality, inseparable from it. As a result, Ampersand's and PG's criticism of the VFW on "freedom of speech" and "censorship" grounds is utterly incoherent. It would be authoritarian to require the VFW to involuntarily adopt, associate with, or distribute a political or moral message with which it disagreed. To do so would be unconscionable, despicable even.

Some inexplicable chain of websurfing this evening led me to think about one of the best T.V. shows ever, which I sorely miss-- MacGyver. Do any readers know if dvds, videos, etc. of old MacGyver episdoes are for sale anywhere, or if old episodes can be downloaded anywhere?

Today's Chicago Maroon runs a story about the University of Chicago's suicide policy. One of the many points at issue is the school's basic rule that after a suicide attempt, they'll kick you out of housing (and possibly out of school for a year, as happened to the article's subject). Something very similar happened to a girl in my dorm (when I still lived in the dorms).

It's possible there's some really good and well-considered reason for this, but I can't think of it. I hesitate to attribute such motivations to an institution I adore, but it's hard to avoid wondering if the policy is really just part of a "not on my watch" policy. (Suicides of enrolled students, or students in housing, after all, look much worse than those of people the university isn't actually responsible for). From the article:

“Suicide attempts are not acceptable at the University, even if they stem from mental illness or emotional problems,” reads a copy of a letter sent to Julie’s attorney. “Suicidal conduct renders a student unqualified to study at the University and live in a dormitory, as any violent or seriously disruptive conduct would render an employee unqualified.”...

“They flip-flop between the issue of conduct and illness,” [Julie's lawyer] said, explaining that if a student had gotten into a fistfight on campus—an example of misconduct—he or she would be entitled to a hearing.

In her latest post, Sara Butler begins, "Crescateer Amanda Butler," thus attempting to coin a new term for a blogger at Crescat Sententia. This, of course, flies in the face of my own preference-- "Crescatter". (The former rhymes with "Mouseketeer." The latter has some resemblance to "Mad Hatter.")

I don't really believe in settling grammatical problems by popular vote, but still, I'm very curious how the vote would turn out, so I invite reader input. Please cast your vote below:

I've noted before that I was reading John Hart Ely's Democracy and Distrust. I just finished it. I thought the beginning-- where he attacks the false binary of clause-bound interpretivism/non-interpretivism, provides support for reading content into the 9th Amendment and the Privileges and Immunities Clause, etc.-- was quite brilliant. I thought that the part of the book for which he's more famous, the discussion of how Judicial Review ought to actually function, how we ought to determine when minorities are "discrete and insular," etc. was less convincing. In particular, Ely has this maddening way of raising (to me) damning objections to his argument, and then not really resolving them convincingly.

Anyway, he ends with an unsatisfying discussion of one possible objection to his theory:

Harry Wellington suggests an example, "a statute making it a crime for any person to remove another person's gall bladder, except to save that person's life." Surely, he says, that has to be unconstitutional. Now Wellington has me (sort of): I don't think that law is unconstitutional. Curtains for my theory? I've led you along all this way only to confess error at the very end? Well, no, since that law couldn't conceivably pass.
"But suppose it did."
"Come on, it wouldn't. We've got problems enough without hypothesizing absurdities."
"Suppose it did."
"Okay, I'll play your game. If it passed, I think we could get it repealed pretty quick."
"What if we couldn't?"
"Then I'd suppose my elected representatives had found out something about gall bladders that you and I are unaware of."
"Suppose they hadn't. Suppose they were just acting crazy."
"Vote them out. Impeach them. Repeal the law."
"Can't. Most people believe they're doing the right thing."
"And they're just acting crazy too?"
"Right."
"I don't suppose we can reason with them."
"Nope."
"You know what you're telling me? That you don't believe in democracy. With neuroses like yours, I sure as hell would be worrying about problems a lot less rarified than substantive versus participational review. Like whether I'm going to read in tomorrow's paper that my dog is under consideration for Secretary of Agriculture."
"Let's leave your dog (and my psychological state) out of this. They pass it. What do you do?"
...[Some discussion of occupying the Capitol, etc.]
It is an entirely legitimate response to the gall bladder law to note that it couldn't pass and refuse to play any further. In fact it can only deform our constitutional jurisprudence to tailor it to laws that couldn't be enacted, since constitutional law appropriately exists for those situations where representative government cannot be trusted, not those where we know it can.

As readers of Daniel Drezner will know, he was recently here at Cambridge giving a lecture. Since I've just recently come out in favor of blogging on the things academics say in public, I figured I'd better show that I'm not a hypocrite, so what follows is a report on the speech that Professor Drezner gave and the questions he was asked.

As Professor Leiter would have me stipulate, any quotations are from my own notes, and any characterizations are my own synthesis of what Professor Drezner said. If he thinks I'm wrong, then he can try to correct the record when he gets back to blogging. Until then, you're stuck with me.

Drezner told us four possible stories to explain U.S. Foreign Policy.

The first was realism, associated with the politics of John Mearsheimer. Under realism, the U.S. recognizes that it's the top dog, and has no interest in letting anybody else get even close to being able to think about challenging us. Thus the lack of respect for epiphenomenal international institutions (the powerful will listen to them only if they represent the appropriate balance of power). Of course, Mearsheimer and many other realists opposed the War in Iraq, because they thought it was an unnecessary war that would be at best unhelpful in maintaining our position.

The second was neoconservatism, in otherwords, the claim that Ideas Have Power. On the one hand, this makes neo-cons almost Wilsonians, with a belief in the fundamental powers of democracy and free markets to tame man's passions. But, oh, how to get there? This idea is also caught up with the idea of American Exceptionalism (see this week's Economist): The U.S. is a beacon of wonderfulness and democracy, and explains our belief that we can remake Iraq. According to Drezner, the fundamental question that neo-cons face is "Can we turn Iraq into Kansas City?" (As an addendum I add, if we did, could they get a better baseball team?) This discussion was also filled with random digs at democratic foreign policy for not really having a better idea than democracy and free-markets. Of course, democracy is one of those things it's hard to be against, but it's all about the process.

Story three: bureuacratic politics. This is definitely the one in which the (British) audience seemed to find the most belief and resonance. In this story, Bush is trying to imitate Ronald Reagan's management style-- articulate a broad vision and let somebody else figure out the details. And as with Ronald Reagan, the result is a cabinet that will hardly speak with itself. At times, suggested Drezner, it seems like "the last person who talked to George W Bush has the upper hand."

Story four: Liberal Internationalism. Don't laugh. Obviously such a claim has to begin with "look beyond Iraq..." and then examples such as our policy in North Korea (not invading), trade promotion authority (whose failure isn't our fault) support this view. And you can argue (I guess) that we were going into Iraq not out of disrespect for international organizations, but in order to ensure that the U.N. Security Council had teeth. Maybe.

Then the questions came, and Drezner's tongue became considerably looser. One audience member (and reader of this blog) asked whether Drezner's claim that 9/11 changed everything was really true. Wasn't there some continuity between Bush's campaign and his current foreign policy? Weren't the seeds there? Drezner warned us that he spoke with some very minore experience in avising the Bush campaign's foreign policy: "There was no continuity whatsoever." [That said, of course, Bush's foreign policy does resemble Bill Clinton's. Think of it as a downward slope-- Clinton started out going into Somalia with the U.N. That was a disaster. Then we did Bosnia, with a UNSC resolution and with NATO rather than the U.N. Then came Kosovo, with the same non-UN support, and with NATO. Now came Iraq...] Was Drezner disappointed with the way foreign policy turned out? He seemed to imply so: "I figured Wolfowitz and the actual defense department officials were smarter than (Richard Perle)."

Another audience member asked, Will Bush step up the withdrawal from Iraq? "No. If you see a hasty pull-out and Iraq sort of disintegrates into chaos . . . there's no way to spin that."

To what extent can this administration's tendency to piss people off, the fact that "This administration is god-awful at 'gardening'" be attributed to the personalities involved rather than their actual policies? Remember, Drezner said, that we thought Bush had the foreign policy dream team, the equivalent of the 1920-something Yankees. But these guys hadn't held audience since 1992. "I don't think they realized that things like Kyoto and the International Criminal Court mattered to anyone else."

Drezner then went into a discussion of how the administration's behavior resembled a prisoner's dilemma, in which we are now executing the "grim trigger" (wherein if somebody pisses you off, you punish them until the end of time.) I'm not actually convinced Drezner's thought carefully enough about the payoffs, and I think this comes closer to resembling a different game, like the Cain-and-Abel game, or the kick-them-while-they're-down game, (I don't know the actual names for any of these). (The latter game features payoffs of 10,10; 8,3; 3,8; and 0,0; and can lead to the perverse (but equlibrium!) result that the players will play one of the "8,3" results forever. I think it explains a lot about the Israeli-Palestine peace process.)

Why not turn Iraq over to the U.N.? Well, firstly, the U.N. isn't a single actor. Secondly, remember the last time tried solo nation-building was in Cambodia. Thirdly . . . "I'm not sure the U.N. wants Iraq at this point. Would you want Iraq at this point? . . . This is your mess, baby."

Oh, and why the difference between Britain/Spain's role and France/Germany's reaction to the war? "Schroeder did it for domestic politics. Chirac just did it because, well, he's French. [Eruption of laughter.] Good to know the anti-french jokes still go ever well here."

Somebody who actually looked like a grown-up asked, Why not mention the war on terror in the four scenarios? After all, Perle and Wolfowitz wanted to invade IRaq long ago. How do the neo-cons explain the increase in the potential of terrorism coming from post-war Iraq? How could they justify taking a cold-war approach to the War on Terror?

Complicated questions, of course, deserve complicated answers. Firstly, it's wrong that we're limiting ourselves to Cold War tactics in fighting terror (c.f. money laundering, financial intelligence, etc.) Secondly, "The enemy of the U.S. is weak states." Terrorists are one thing, but they still need a place to hang their hats. So we need to either build states up or smash them down. Thirdly, (and, says Drezner, you could get this out of the administration only if you "liquor 'em up,") their expectations were probably wrong about how easily things would go in Iraq. "Iraq will temper the neo-con enthusiasm for remaking states willy-nilly."

Will the U.S. strike somewhere else in 2006? "Between you and me, it's Syria. (uncomfortable pause). Just kidding." Drezner added, "We don't have the manpower, unless we get our of Iraq to invade another country, which would possibly be the stupidest move ever."

The penultimate questioner asked-- What would Clinton do? What would the Democratic challengers do? Drezner answered: Anyone would invade Afghanistan, Clinton would never have invaded Iraq. The new Democratic challenger (Drezner's money's on Dean) will shore up the troops there. There's no pulling out now. And he might bring in the U.N. He might be able to bring in the U.N., who would be relieved that "Oh, thank God, Bush isn't in power."

What will a 2004 Bush cabinet look like? Drezner first told us that he wasn't nearly as sure as we seemed to be that Bush would win. He conjectured that we might lose Powell, Rumsfeld, Armitage, and Rice-- time in Washington takes years out of you, he said. "Do they show West Wing repeats here?"

Matthew Yglesias wants to know if Susan Moller Okin is "still on her Ahab-like quest to prove that Volokh Conspirator Jacob Levy misquoted her in his book." Having attended the colloquium at which she spoke today, I can report that Jacob Levy's work was not mentioned, either positively or negatively. I was, however, rather surprised at the vitriol with which she attacked the tax-exempt status of the Catholic Church in America. I mean, it seems to me that if one is going to start complaining about misogynistic institutions receiving support from the U.S. government, a much better place to start would be the monarchy of Saudi Arabia, or at the very least, complain about the role of the Catholic Church in denying third-world women access to legal birth control, not their failure to open the priesthood to women in the United States.

"We knew that this would be a very provocative thing for us to do," said John Thomas, editor of Playboy.com. "Wal-Mart has a conservative corporate image and we knew they wouldn't be thrilled. But we're hoping that the company will be pleased once they see how fun the pictures are and how empowered the women at Wal-Mart feel."

Ah yes, empowerment through pornography. Thank the Goddess for those feminists at Playboy! Without them, the disenfranchised female masses would somehow have to muddle through life without the benefit of having their vaginas photographed with a zoom lens. How could a woman possibly have any self-esteem unless she knows that she too could appear in magazine devoted to male masturbatory impulses?

My thoughts on pornography in general are somewhat ambiguous. The views espoused by Catherine MacKinnon during her anti-pornography crusade are a far greater danger to the health of the Republic than pornography itself. Similarly, I find anti-pornography screeds like this New York Metro article to be rather overstated and unconvincing. For example:

Dr. Ursula Ofman, a Manhattan-based sex therapist, . . . surmises that cyberporn may play a role in what she describes as "the truly stunning things women today feel obliged to do sexually with a man—whether it's something like anal penetration or simply not bothering to please themselves."

Anal Sex! The Devil, you say? Only deviants would consensually engage in such conduct. We ought to pass a law. Funny, this all sounds so familiar . . . .

However, the acknowledgment of such ambiguities and countervailing concerns hardly amounts to pornography empowering women. Indeed, it is hard to gainsay the fact that pornography is an exploitative enterprise. For example, it is difficult to imagine that any of the contestants participating in Who Wants To Be a Porn Star? will be edified by their experience. It is outright obnoxious to hear contrarian assessments from less-than-disinterested purveyors of pornography like John Thomas. I suspect that Playboy is about as empowering to women as Amos and Andy was to black folks.

Do you read En Banc, Crescat Sententia (duh), The Volokh Conspiracy, Crooked Timber, Begging to Differ, or Southern Appeal (or some other large-ish group blog I haven't mentioned-- Hit and Run? The Corner? Tapped?)? Do you have one particular blogger who just sticks in your craw?

The Volokh Conspiracy is kind enough to provide a URL to let us exclude the bloggers we detest. The rest of us group-blogs either don't have that kind of technical adeptness or that kind of courtesy for our readers.

At any rate, I'm offering a challenge/proposal to the big group blogs-- let the readers vote off one particularly loathed conspirator, survival-style. Email Eugene Volokh, Kieran Healy?, Steve Dillard, Unlearned Hand, Steve Dunn, me, and/or the proprietor of your favorite group blog and encourage them to join the "group-blog survivor sweepstakes," and you'll finally have your chance to get rid of Ted Barlow, Tyler Cowen, David Bernstein, or, of course, me. If you can convince enough of them to agree, then so too will Crescat.

I can't imagine that any of the group-blogs will accept if this is permanent exile at stake, so how about a week's banishment, after which things can return to normal? (Or not, I suppose). We could do the voting either via private email or public blogpoll (the former protects against voter fraud, the latter against blogger fraud).

It's all the fun (and class) of reality T.V.

[Note: By listing the bloggers I did up above, I don't mean to say those are the ones I would vote off myself. But that should be obvious.]

Lawrence Solum has an incredibly widely-cited post on the downward spiral of nominees. It's worth reading.
.
Almost everything worth saying in response has been said already. My own suggested solution is the same as Josh Chafetz's (which I think we chatted about during his trip to Cambridge)-- let's logroll.

For every Estrada, Pickering, Owen, Brown, whatever, the Democrats can have their . . . well, I don't know who the Democrats would want, but there are plenty of perfectly reasonable judges (though I may disagree with a lot of them a lot of the time) on the otherside of the spectrum. Surely a reasonable bargain on ideologies could be reached.

One final observation-- like Matt Yglesias, I'm not particularly appalled when legislatures play politics with judicial nominees. I mean, it makes me a little sad when people purposefully misrepresent what the nominees say, or when they pretend that they want nominees to "follow the law" when they really have litmus tests, or whatever. But it doesn't particularly surprise me, and it doesn't make me any sadder than congressional politics usually does.

When Lawrence Solum requests that we find judges who possess the virtue of justice, I think he's quite optimistic, but I think his hopes are worthy, and I share them. When he wants Senators to behave honorably too, I'm afraid he might be dreaming.

Judge Kozinski, writing:

We decide whether Congress can, under its Commerce
Clause power, prohibit the mere possession of homemade
machineguns.

In Ghettoization of Minority Scholars, En Banc's PG discusses a legal conference she recently attended at which all the minority JDs and most of the women sat on the Race & Ethnicity and Gender panels, respectively. It reminds me of a speaker session, "Women in Academia," that the campus Feminist Majority chapter hosted this Monday.

As such luminaries as Wendy Doniger (first woman on the Committee on Social Thought) and Melissa Harris-Lacewell spoke about their research interests' connections with issues of gender, I kept thinking to myself, "yes, but why are you so interested in gender?" This led to, "why do you think of yourself so prominantly as a woman and why do I not?" I never resolved this question, but I suspect that it could be because I don't find the subject particuarly interesting.

I mainly think of myself as a woman if I'm walking around late at night, if people are being particuarly friendly (especially if I'm in a skirt above my knees and the people are men I don't know well or at all), or if I'm trying to figure out why one of my roommates won't do his dishes (I disgard it, though, because gender doesn't answer the question well: one roommate does his, the other doesn't eat at home).

I don't think of myself as a woman when I think of intellectual interests. Why am I in awe of Robert Penn Warren, Michael Ondaatje, and Graham Greene? Why do I get a nerdy spasm of glee when I learn there's a circuit split on the bill I'm writing a final paper on? Why does a walking in on a discussion of Ayn Rand's philosophy lead me to walk out and hope no one noticed my entrance? Maybe it's my stubborn refusal to believe that my biology affects my mind (much as I do accept that strong coffee cheers me up), but I just don't think the fact that I'm a woman is primary among my strong interests and dis-interests. So have no fear, PG, give me a few years and I'll be sitting on the panel that doesn't look like it was drafted by gender (so I should look for you on anti-trust then? hells, no!)

It's Thursday night in Cambridge, which means it's time for Will's weekly poker retrospective, where I once again contemplate the failures of my playing style (which could most charitable be termed tight/confused). If you've got some vice more sophisticated card-playing, then pass on, pass on.

Firstly, a question. In a 3-pound unlimited rebuy tournament (for the first hour) what possesses somebody to rebuy 11 times? I mean, I felt sorry for him, really-- he went all-in before the flop on ten consecutive hands and lost every time. Even playing the kind of schlock he was playing, luck could have come his way at least once.

Anyway, thanks to the extra chips he invested in our table, as well as some rather confused all-in callers, I joined the big table with something approaching twice as many chips as anybody else had. Then I fell into my usual pattern. Call the blinds with some rather strange hands (I have an inexplicable attachment to things like K-7 suited), lose them, get the nuts, win enough money to finance my terrible play, etc.

Anyway, this brings us to the hand to contemplate:

I'm sitting in the big-blind (I think it's 800), and get handed 2-7 of spades. Blech, I say to myself. Oh well. People fold around the table, and I sit chuckling to myself. The little blind calls the big blind, and we enter the flop heads-up. It's 2-7-8. I avoid my smile. Okay, I think. A small bet. 1000. After a bit of a pause, Vlad, who's been steadily losing chips until a recent rash of random blind-stealing, goes all-in with about 7000 chips, about 2/3 of my stack.

Hum. What could he have? 2-7, like me, I suppose. Or, more likely, a 7 ot 8 and an overcard. (Could he have a pocket pair? Maybe.) I decide 7-8 is unlikely and 8-2 a risk, and I call it. He has K-10.

Oh, one thing. King-Ten are of clubs. So are the 2 and the 8. Okay, I think to myself, what are my chances (answer 65%).

But, yeah, a club flips, and that's more or less the end (I think the final blow was an all-in move with my K-K drawing nearly dead against some A-A.)

Still, couldn't have done it differently, I suppose. But ex ante rationality doesn't always make for ex post satisfaction.

. . . Senator Charles Schumer has been remarkably frank in offering a legal realist (dare we say Critical Legal Studies?) analysis of the judicial selection process. Consider the following report from the Harvard Crimson:

On Friday, Schumer echoed and intensified the message of a controversial June 2001 New York Times Op-ed, where he argued that the Senate should consider appointees' ideology as part of "its responsibility to advise and consent."

And,

Schumer said he considers three criteria when looking at a nominee: legal excellence, ideology and diversity. With respect to ideology, he added that judges should be moderate and aim to interpret rather than make law.

There is, you will notice, an interesting tension within Schumer's remarks. On the one hand, he believes that political ideology is the key to the judicial selection process. When Schumer spoke in the Spring at hearings on the Republican proposal to limit filibusters of judicial nominees, he was even more frank about this—arguing that judicial decisions are driven by political views and not by the rules laid down. On the other hand, Schumer is afraid of being too frank about his commitment to the ideological selection of judges, mouthing the formalist line that judges should "interpret rather than make law."

Schumer is not just a legal realist when it comes to judicial decisionmaking, his clarion call to consider political ideology in the confirmation process is fueled by a legal realist conception of the Senate's "advice and consent" role. As Schumer sees it, Senators have always considered the politics of judicial nominees, the difference is that he is willing to do so openly and honestly. As he phrased it in a press release in 2001:

One thing is clear: the ideology of particular nominees often plays a significant role in the confirmation process. Unfortunately, knowing when and to what degree ideology should be a factor for the Senate is far more obscure.

For whatever reason, possibly senatorial fears of being labeled partisan, legitimate considerations of ideological beliefs seem to have been driven underground. It's not that we don't consider ideology, we just don't talk about it openly.

* * *

It is high time we returned to a more open and rational consideration of ideology when we review nominees. Let's make our confirmation process more honest, more clear, and hopefully more legitimate in the eye of the American people. . . .

Professor Hasen has penned a mild dissent from Solum's more formalist approach, arguing that, "at least when it comes to constitutional adjudication of rights, talk of formalist judging is just 'pie in the sky.'" In short, Hasen would appear to agree with Schumer to some extent. Although a judge's political preferences undoubtedly influence constitutional outcomes to some extent, "pie in the sky" seems far too uncharitable. An honest judge is constrained by a whole host of legal norms.

This is the problem with legal realism. It's not that legal realism has no merit, it's that its merits are always overstated. Consider, for example, Professor Powe's assessment (as related by his likeminded colleague Brian Leiter):

Lucas A. (Scot) Powe, Jr. has a pithy way of expressing the idea. He likes to say: "Anyone teaching constitutional law who discusses only the doctrine is guilty of educational malpractice." . . . Why malpractice? Because such a teacher will not equip his or her students to advise clients intelligently about constitutional law issues, since what courts do with these issues, on the realist view, has far more to do with extra-legal political and related considerations than with doctrine.

The difficulty with this notion, as I see it, is that we do not need the assistance of law professors to perceive the obvious. Powe may as well stand before his students and sagely advise them that doors are sometimes made of wood. That Scalia's and Stevens's contrasting views of the Constitution are of necessity politically informed and that this information impinges on their jurisprudence is plain as day. Almost no one fails to understand this. However, what many people, including lawyers, do fail to appreciate are the convolutions and subtleties of legal doctrines, constitutional and otherwise. The interaction between a judge's ideology and these preexisting legal doctrines is doubtless complex; however, if it is true that the former sometimes overbears the latter, it is equally true that the latter often constrains the former. How often have we read words to the effect of "Were we writing on a blank slate . . ." in a legal decision?

Solum concludes by lamenting the potential end result of confirmation wars: thorough politicization of the judiciary. Hasen has a nice but not entirely satisfactory rejoinder to Solum's now familiar refrain: "believing that ideology matters is not the same as believing the system is corrupt." Hasen is right, of course. Not every politician is Boss Hogg. However, what Hasen's reply fails to appreciate is that federal judges are not politicians at all, notwithstanding the intersection of judicial decisionmaking and politics. The legal process, even at the appellate level, even concerning constitutional issues, is not mere "pie in the sky." The selection of our federal judges should not proceed as if it were.

Pejman Yousefzadeh provides a much-needed antidote to the latest ... stuff ... that Ted Barlow posted over at Crooked Timber.

I like Crooked Timber a lot, I really do. But do you ever have those "I really like this group blog, but this one person's posts just never seem to quite match the tone, content, or quality of anybody else's" moments? (Yes, yes, I know, you're thinking to yourself, most of the folks at Crescat Sententia are really great, but let's get rid of that "Will" character . . .)

I'm sure The Clerk will tell me what grevious sin of law Dahlia Lithwick has committed in this Slate article, but until then, I shall enjoy it in my naive ignorance. So far as questions from the Justices go, Justice Scalia gets the prize for this dig:

H. Bartow Farr III represents Hanson's widow, and as he starts to speak, Scalia hijacks him with a hypo in which a man "hurls himself into the sea, intending to commit suicide," while nearby there is a dock with 30 people, each with a life preserver at his feet, all of whom refuse to throw a life preserver to the drowning guy. "I don't know," he adds. "Maybe they're 30 libertarians."

[on eating in flight:] True, you still have the perfumed towelette: but this cannot be distinguished from the little envelopes of salt, pepper, and sugar, and so, after you have put the sugar in the salad, the towelette has already ended up in the coffee, which is served boiling hot and in a heat-conducting cup filled to the brim, so that it may readily slip from your seared fingers and blend with the gravy that has no congealed around your waist. In business class the hostess pours the coffee directly into your lap, hastily apologizing in Esperanto.

In the latest departure from traditional marriage procedure, some American men are beginning to take their wives' last names, either using the woman's name in addition to their own or nixing their given names completely.

"I've definitely heard more about both the husband and wife hyphenating," said New Jersey-based wedding expert Sharon Naylor. "It's really picked up in the past few years, although it's still a very small number."

For example:

Kelly Shubert-Coleman, 23, said her husband Jon, 29, chose to put his name before the hyphen because the Coleman often got left off.

"I actually wanted to combine them into one name, but hyphenating was enough for him."

The Shubert-Colemans decided to hyphenate because they wanted their kids to share their last name, and neither wanted to give up their individual identity.

Some notion of equality of the sexes serves as an impetus for some as well. One man explained:

"Initially I don't think I would have accepted [taking my wife's name] as an idea, but I really thought if you wanted to be equitable, both names should have equal weight," he said. "We have all these friends who are complete equals in their marriages and lives, but when they get married the default is the husband's name."

As the second excerpt indicates, couples can do whatever they choose regarding their own names, but getting society to go along with their decision is another matter altogether. Hyphenated names are often considered ungainly and inconvenient. So those who have no shared emotional stake in an extended surname are likely to abbreviate it to comport with their own sensibilities.

It is difficult to imagine that this trend will turn the tide against patrilinealism. Convenience and cultural inertia, if nothing else, will pose a formidable obstacle to change. In some quarters, outright disapproval rather than mere inertia is more likely to be the case.

Personally, I have never fully understood the modern tendency of some women to retain their maiden name or adopt a hyphenated surname after marriage. Although I can understand the desire to retain one's established identity, declining to adopt one man's name in lieu of retaining another's (or combining the two) seems an odd way of expressing one's personal autonomy or equality. In a patrilineal society, a woman will end up bearing her father's or her husband's name, or both in the event of a hyphenated surname. Moreover, in a certain sense, the very notion of a surname is a delimitation of individuality.

This is not to say that the present custom is the exclusive or exclusively right naming convention. Spanish surnames, for example, feature a marriage of matrilinealism and partilinealism. Excepting the Romans, hereditary surnames are apparently a relatively new phenomenon altogether. Nonetheless, being a creature of my place and time, this latest development is jarring to say the least.

Update: An astute reader raises an issue that had not even occurred to me. Assuming for a moment that this trend in hyphenation were to pick up steam, what on earth would people do a generation from now? As the reader in question put it, "what will young Tyler Shubert-Coleman and Dakota Smith-Wollensky do when they get married and seek to join their hyphenated last names together in hyphenated bliss just like mom and dad did?"

I received a huge amount of email in response to my post about men's tie lengths, where I asked, essentially, Why is Humphrey Bogart's tie so short?

What follows is an assortment of the most intelligent reader commentary, generally discussing knots, pant-height, and suit-style:

Wrote one reader:

(B)ack in the day the waistline on men's pants tended to be higher than it is today, especially if the pants were worn with suspenders.

So, with the coat (and possibly vest) in mind, a longer tie would have seemed pointlessly long.

That was a time when, in writing, if a man was "in his shirtsleeves", it was a notable point, because otherwise he was assumed to have his coat on.

First, it wasn't the type of knot used that determined the height of the tie during the "Bogie" era. A longstanding discussion has been going on regarding this in GQ's "The Style Guy" column (by Glenn O'Brien). Back in the 1940's, men wore suits differently than today. The pants were cut with higher waists, sometimes above the navel (as Fred Astaire tended to do), and the ties were made differently. Ties were smaller, wider (until the early fifties, when they changed over to the thin, Blues Brothers style of tie), and generally tied a few inches above the waistline, wherever that may be. Thus, Bud Abbot's ties looked like squat pyramids that rested just below his solar plexus. Incidentally, it had nothing to do with the type of knot used. Most men, today, tend to use the Windsor or Half-Windsor. The Windsor is better with a wide, British collar, but a Four-in-Hand could work just as well as a Windsor with a modern tie (and would still leave the tie hanging at what is now the traditional location, on the belt).

I just wanted to note that Carson, from Queer Eye for the Straight Guy, says that a properly tied tie should hit (or was it cover?) the belt-buckle. Anyway, it's certainly official that now "style" dictates the tie be longer than Bogart's. Interesting observation though.

Silk for ties is prohibitively expensive. One way to tell if you're looking a high-quality tie is to look at the material that the loop through which you thread the narrow blade is made out of (the loop is usually the black piece of silk that the tie designer's name is written on). If the loop is made from the same material as the tie, you're looking at a great tie. If the loop, the tie and the tie's lining are made from the same material, you're looking at a masterpiece that is far beyond the means of most men. I've never actually seen a tie like this in a store.

If tailors are skimping on the loop, you can imagine how much money you can save by economizing on the length. When most men wore three-piece suits, the length of the tie could be very short, since you could cut the price of the tie by more than half. When three-piece suits went out of fashion, ties took a while to catch up and longer ties were more expensive anyway, so you can imagine why Bogart would choose this look for his characters. It's a signal, and one contemporary viewers fail to get. To us it looks boyish.

In general, men's tailors would often do things like this. I don't know if you ever read A. Dumas' The Three Musketeers, but there is a scene at the beginning where D'Artagnan accidentally disovers that Porthos' baldric was glittering with gold in the front, but was nothing but simple buff behind. Vainglorious as he was, Porthos could not afford to have a baldric made entirely of gold, and he is so embarrassed that he challenges D'Artagnan to a duel.

Tyler Cowen links to a fascinating site about the economic behavior of children. The most interesting line Cowen quotes:

Boys claim to be more aggressive bargainers than girls do, but they are not.

Christina Hoff Summers : The University of Chicago :: Catherine MacKinnon : Oberlin?

False.

Ampersand's latest crusade against Sara Butler includes this post, arguing basically that Sara's event that hosted Christina Hoff Sommers was a failure because it only got 80 people to attend. Amp writes:

"Over 80"? At a campus as conservative as Chicago?

How lame can they get?

Jack Shafer has class.

If I were a wine I would be...


This quiz was created by Krazy K. Take it here!

(Link via Professor Bainbridge.)

I'm slightly suprised by how often our sitemeter reveals that people are coming to this site by googling "crescat sententia." Glad to have you, but it seems that once you remember the name, the www.__.org is the easy part.

Someday, I'll write something intelligent and relevant about the HLR gender-disparity debate. Read The Curmudgeonly Clerk for one side, and Chris Geidner for another.

For now, however, I'll simply note that as with petards, Cori Dauber, free love, The Righteous Brothers, social justice, style, Latin, and God, Tom Stoppard has an insight on the matter:

Annie: You're jealous.

Henry: Of Brodie?

Annie: You're jealous of the idea of the writer. You want to keep it sacred, special, not something anybody can do. Some of us have it, some of us don't. We write, you get written about. What gets you about Brodie is he doesn't know his place. You say he can't write like a head writer saying you can't come in here without a tie. Because he can't put words together. What's so good about putting words together?

Henry: It's traditionally considered advantageous for a writer.

Annie: He's not a writer. He's a convict. You're a writer. You write because you're a writer. Even when you write about something, you have to think up something to write about just so you can keep writing. More well chosen words nicely put together. So what? Why should that be it? Who says?

Henry: Nobody says. It just works best.

Annie: Of course it works. You teach a lot of people what to expect from good writing, and you end up with a lot of people saying you write well. Then somebody who isn't in on the game comes along, like Brodie, who really has something to write about, something real, and you can't get through it. Well, he couldn't get through yours, so where are you? To you, he can't write. To him, write is all you can do.

Henry: Jesus, Annie, you're beginning to appal me. There's something scary about stupidity made coherent. I can deal with idiots, and I can deal with sensible argument, but I don't know how to deal with you...

In lecture this morning, somebody raised their hand and asked a question. The lecturer nearly fell over from shock.

Tom Cruise was nearly beheaded by his co-star while filming The Last Samurai.

Let us but hope that this will not fuel the (thankfully weak) sword-control lobby.

Steve Bainbridge has found a pretty good suggestion for how to make political hay of the Janice Rogers Brown filibuster. [An interesting dilemma for me: I definitely support the Brown nomination, but I'm much less sure I support the Bush presidency. If the ad were to be effective at all (big if), would it be more likely to help Bush's candidacy or Brown's?]

If Matthew Yglesias is allowed to admit he's never seen Casablanca, and Amanda can admit she's never read Hamlet, then I'll allow as how until this morning, I'd never read a word by John Hart Ely. Nonetheless, I began during my econ lecture, and he's enthralling.

That said, my query: On page 40 of Democracy and Distrust, he says, "at the time of (the Fourteenth Amendment's) ratification only three Acts of Congress had been declared unconstitutional by the Supreme Court." Despite the copious endnotes (ninety-some in that chapter alone), there's no reference for that claim, which I find a pretty fascinating one. Does anybody know what three?

Apropos yesterday's post, I also can't pass by without noting that on page 43, Ely discusses how interpretivism "is hoist by its own petard."

UPDATE:

Unlearned Hand, Josh Chafetz, Mark Shawhan, and Jacob Levy all write in to point out that the first two laws are a part of the 1789 Judiciary Act and a part of the Missouri Compromise (struck down in Marbury v. Madison and Dred Scott v. Sanford, respectively). With those two being so famous, one would think that the third would be equally obvious.

DOUBLE UPDATE:

Courtesy of my all-knowing father, the elusive third case: Ex Parte Garland (1866), which struck down an 1865 act requiring loyalty oaths (at least, as applied to a lawyer who had received a presidential pardon). So, Josh, apparently Ely wasn't wrong.

[Apparently there's also an elusive case called Gordon v. U.S. where the Court dismissed an opinion without appeal, perhaps (later study suggests) on the belief that the statute allowing the appeal was unconstitutional.]

One of the larger frustrations of being 6 time zones away from home is that when the powers-that-be bring down the email servers every Wednesday and Sunday from 4 a.m. to 8 a.m., that's right in the middle of your prime-emailing-time.

A clarification, with respect to Amy's post below:

My claim isn't that if we ban rape pornography, that we'll find ourselves banning other stuff next. That might be true, but it seems unlikely.

Rather, my claim is that rape pornography shouldn't be banned for its own sake-- not because of slippery slopes, and not because I like the stuff (God, it's horrible), but because other people like it.

And some members of this blog hold resolutely to the quaint old moralist notion that it's just not right to make other people unhappy when they aren't really getting in your way. Live and let live.

Lehrer quote:

All books can be indecent books
Though recent books are bolder,
For filth (I'm glad to say) is in
the mind of the beholder.

Ampersand and the pro-vice contingent of this blog have lately been engaged in a debate over the merits of hard-core pornography. (Warning: graphic content and links ahead.)

The debate starts here, Ampersand responds here, and Will responds here. I am generally of the view that any pornography manufactured by consenting adults should be available for the purchase of other consenting adults, but nevertheless, I'm not satisfied by the arguments that Will advances here in favor of free speech:

Now, to be clear, I think that pornography is generally pretty distasteful stuff, and I think that rape porn is especially distasteful. But I think that it should be legal, for two reasons.

One is a "slippery slope" argument, and it's a "forms of argument" slope. That is, forcing distasteful pictures to justify themselves is just a bad practice, and it helps destroy whatever norm we may have that free speech is good just because it is. My worry isn't that we're going to creep from rape porn to Hustler to Playboy to Rodin's Eternal Idol. My worry is that by forcing a speaker or picture to explain why it's "deserving" of free speech protection, or why we should care about free speech in the first place, we're missing the point of free speech.

The other argument is a utility argument. I think the biggest problem with such morals legislation is that personal consumption always gets short shrift. Few advocates of marijuana legalization stand up and say, "one of the major costs of marijuana prohibition is that it makes it harder to smoke marijuana." Arguments for permitting obscenity always have to be framed, as Lehrer says, "as a matter of freedom of speech and stifling of free expression and so on." The reason we should care about the censorship of porn sites is that porn-hounds are people too. The same reason we should care if the government decided to ban all art by Piet Mondrian, or music by the Backstreet Boys. Art and music would suffer no losses, slippery slopes would be unlikely, and so on. But for reasons unfathomable to me, a lot of people like that stuff, and the business of government shouldn't be making its citizens unhappy.

The problem with both of these arguments is that they require the listener to buy into a belief that if highly unfavored form of speech x is restricted, it will be somewhat unpopular form of speech y (y being favored by the listener) that will go next. The majority of people who encounter such arguments (rightly) dismiss such reasoning as unnecessary paranoia.

The fact is that very few people hold positions extreme enough to be subjects of successful attacks. (Proposing an amendment to ban flag-burning seems to be a congressional ritual, but even that relatively popular limit on speech has yet to pass with the requisite numbers to send it to the states.) So given that one would derive some nontrivial benefit from banning certain patently offensive forms of speech while facing slim possibilities of having one's favored speech forms similarly treated, why should someone support free speech?

This is the question Will's response fails to answer. Why should we believe that free speech, in and of itself, is good? The answer depends upon how confident we are of the rightness of the ideas we now hold. If we are absolutely certain that they are correct in all particulars, and that there is no benefit to being exposed to new ones, then we really have no reason to support free speech until the levels of suppression are such that we should reasonably fear that they might indeed be coming for us next. But if we have some doubts, if we occasionally find ourselves wondering "What if everything that we regard as a bedrock value of our society is in fact mistaken and unjust?" then we might want some people around with the freedom to make that case to us as persuasively as possible, if only so that we can confirm the rightness of our current beliefs when their arguments fail to sway us.

So what about rape pornography? What value could that possibly have? Well, suppose that for a significant portion of the population of potential rapists, watching rape pornography provides enough of the fix they desire that they aren't interested in raping actual women and facing the concomitant legal penalties. Suppose further that there are women who are not only willing, but eager to fulfil this male demand for rape pornography (such women certainly do exist even if they are small in number). Legal access to rape pornography makes it much easier for the latter group to fulfil the demand of the former group, vastly decreasing the likelihood that these potential rapists will instead turn to truly unwilling women for their satisfaction.

I don't know if there is an effect like the one I described above--I haven't studied the issue enough to be able to make some sort of reasoned judgment--but I also don't know that there isn't. The problem is that if rape pornography is banned, I'll never know.

So the question that people should ask when confronted with an offensive form of speech is not "How likely is a ban on this to lead to a ban on some form of unpopular speech that I support?" but rather "How certain am I that this speech has absolutely zero redeeming merit?" And if you are inclined to answer "Absolutely certain", remember that once upon a time conventional wisdom had it that masturbation caused hairy palms.

And for the gratuitous Tom Lehrar quotation:

As the judge declared the day that they acquitted my Aunt Hortense/ To be smut it must be utterly without redeeming social importance.

The staff judge advocate for the 4th Infantry Division has charged Col. West with communicating a threat and aggravated assault for firing his pistol to scare a detainee into divulging information.

Ipse Dixit thinks that prosecution of West is "[o]verdoing it." This general sentiment appears to be somewhat common. What's interesting is that this sentiment exists despite the undiputed facts. West himself has confirmed the relevant details:

The Washington Times contacted Col. West last week and he provided a narrative via e-mail of his actions in August. He said an informant told him that a town policeman was involved in attacks on American soldiers and that he knew of pending ambushes.

Frustrated with the Iraqi's refusal to talk, Col. West said he fired his 9 mm pistol twice to scare the Iraqi into thinking he would kill him if he didn't talk. Col. West said the detainee then provided information on a planned attack and the names of accomplices.

Colonel West has even conceded that his conduct was improper:

"I have never denied what happened and have always been brutally honest," said Col. West. "I accept responsibility for the episode, but my intent was to scare this individual and keep my soldiers out of a potential ambush. There were no further attacks from that town. We . . . apprehended two other conspirators (a third fled town) and found out one of the conspirators was the father of a man we had detained for his Saddam Fedeyeen affiliation.

"(The Iraqi policeman [the detainee]) and his accomplices were a threat to our soldiers and the method was not right, but why should I lose 20 years of service or be forced into prison for protecting my men?"

In view of West's concession, I am a little surpised that West continues to be defended. One might argue about the appropriate consequences, but it is odd to hear the nearly unqualified defenses that are being put forward. For example, Ipse Dixit makes a legal argument against prosecution altogether. Ipse Dixit first quotes the relevant article of the Uniform Code of Military Justice and then makes the following argument:

[The applicable article is] rather different from the definition that prevails in many American courts . . . . It's a close case, truth be told, which is one of the reasons I've held off deciding what I think about it. But he purposefully discharged his weapon away from the prisoner and I've heard no-one allege that he threatened to do otherwise. His intimidation tactic appears to have worked without him ever actually telling the prisoner that the next shot might not be headed away from him.

The key is that all elements of the crime must be proven, including the requirements of an offer or attempt to do harm. The necessary threat or attempt does not appear to be present here, so, while he might be liable in tort for Assault in some American courts and would certainly have any evidence he obtained thrown out in any American criminal proceeding against that prisoner, his actions do not, to my mind, violate Article 128. . . .

As an initial matter, I think that Ipse Dixit is misinformed about the basic facts. As some of the bolded text above indicates, Colonel West clearly intended his conduct as a threat to the detainee's well being. Even without this concession, Ipse Dixit's parsing is bizarre. Shooting a pistol during an interrogation carries an unmistakable implication of untoward consequences for failure to cooperate.

The relevant UCMJ provision provides that:

(a) Any person subject to this chapter who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and shall be punished as a court-martial may direct.

(b) Any person subject to this chapter who—

(1) commits an assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm; or

(2) commits an assault and intentionally inflicts grievous bodily harm with or without a weapon; is guilty of aggravated assault and shall be punished as a court-martial may direct.

Ipse Dixit's reading of the article would require that a threat be ultra-explicit (e.g., a verbal threat to shoot the detainee, or pointing the pistol directly at the detainee) in order to even bring charges. However, whether the charged conduct constitutes an offer of unlawful force (i.e., a threat) is really an issue for the fact-finder. Certainly, there is sufficient evidence to proceed to a court martial.

A reading of the relevant military caselaw makes it unmistakably clear that this court martial is not legally unfounded. See United States v. Locke, 16 M.J. 763, 765 (A.C.M.R. 1983) ("An assault is an attempt or offer with unlawful force or violence to do bodily harm to another. . . . [An] offer to do bodily harm to another ... is a putting of the other in reasonable apprehension that force will at once be applied to his person."). Anyone being detained in a warzone by an opposing force and subjected to interrogation would be placed in reasonable apprehension of the immediate application of force by the deliberate discharge of a firearm. It is laughable to contend otherwise. The very reason that Colonel West fired his pistol and the very reason that this display was successful is because anyone reasonable would construe this as a threat to life and limb.

Moreover, even if West had somehow managed to fail to scare the detainee, he could properly be charged with attempted assault due to his acknowledged intent. See id. ("[I]f an attempted assault is prosecuted on the theory that an accused tried but failed to offer violence to and frighten the victim, one commentator has stated that 'there would appear to be no conceptual difficulty in finding [an accused] . . . guilty of an attempt to commit an assault.' . . . We find this theory persuasive and hold that attempted assault by offer to do bodily harm is an offense under military law.").

The Straight Dope does a service for Tom Stoppard fans (and characters), answering the question "What's a petard?" [The answer is pretty surprising.]

In Stoppard's The Real Thing, Annie wonders precisely the same thing (and gets it wrong, just as the Straight Dope reader does):

Annie: I wish I felt selfish, everything would be easy. Goodbye Billy. I don't need him. How can I need someone I spend half my time telling to grow up? I'm . . . -- what's a petard?, I've often wondered.
Henry: What?
Annie: A petard. Something you hoist, is it, piece of rope?
Henry: I don't think so.
Annie: Well, anyway. All right?
Henry: All right what? I keep marrying people who suddenly lose a wheel.
Annie: I don't feel selfish, I feel hoist. I send out waves, you know. Not free. Not interested. He sort of got in under the radar. Acting daft on a train. Next thing I'm looking roudn for him, makes the day feel better, it's like love or something: no-- live, absolutely, how can I say it wasn't? You weren't replaced, or even replaceable. But I liked it, being older for once, in charge, my pupil. and it was a long way north. And so on. I'm sorry I hurt you. But I meant it. It meant something. And now that it means less than I thought and I feel silly, I won't drop him as if it was nothing, a pick-up, it wasn't that, I'm not that. I just want him to stop needing me so I can stop behaving well. This is me behaving well. I have to choose who I hurt and I choose you because I'm yours. (Pause. The phone rings.) Maybe it's just me.

The New York Times discusses "southern art." It also contains a silly claim by Shelby Foote:

All Southerners who try to express themselves in art — whether it's writing or painting or anything else — are very much aware that they are party to a defeat, which is something most other Americans didn't feel until Vietnam. . . It's an overriding aspect in any Southern artist's mind, always present whether they know it or not.

Will neglected to quote some of the most appalling lines of the Daily Kos post, but I won't.

Politicans and voters from the deep south will never vote democratic until the demos prove that they are in sync with the values of the deep south -- by burning a black person alive, drawing and quartering suspected witches in public, and tearing up the U.S. Constitution and feeding it into a bonfire along with books written by jews and asians and other non-white non-Christian citizens of America.

Yes, progress has been slow, African-Americans aren't currently represented in the House to the proportion they are in the census, and there are none in the Senate, and there hasn't been a black governor since Wilder. This is still an improvement over 50 years ago, and all of these names I have listed have been Democrats.

These are elected officials from the "deep south." Or does "deep south" not mean "the white people living in the states formerly a part of the confederacy." If it does, that's news to me.

Southerners want to rip up the Constitution? Tell that to good federalists like Feddie at Southern Appeal or the gentlemen at SoCon.

Where are the facts anywhere in this paragraph? Where is anything that could even allude in passing sarcasm to a fact?

Fine. I'll quit pretending to take his rhetoric seriously. Churches were firebombed in Alabama, not in Maine? True, sadly true, but how many black churches were there in Maine in the 1960s?

And I've got to ask -- why does Daily Kos bring up the atrocities of slavery practiced in the South before the Civil War as though they were determinative of the the situation in the South today?

The American South is Guatamala, replete with death squads and torturers, run by the same kind of sadistic paramilitary units and dedicated to the same kind of kleptocratic organized governmental theft and censorship enforced by paramilitary thugs we find in south american banana republics.

Good grief. I don't know how to respond to the post other than to want to smack him upside the head a few times until I knocked some sense into him. Or... ok, what I want to do is to send him to intensive accent courses until he sounds like he's from Atlanta or Birmingham, train him in proper behavior dress, and send him down to the South ala John Howard Griffin's Black Like Me. And then let's see if he's slightly more reasonable.

Aye, this whole response is convoluted, but then, so was the prompt.

UPDATE: (1) Brian Quinif, who is from Sanford Bishop's district, emails to say that the Georgia 2nd is a majority white farming district; Bishop won his second most recent election against a black Republican, Dylan Glenn (most recently, Bishop won re-election unopposed).

CORRECTION: Bishop defeated Glenn in 2000. Glenn, incidentally, is now running for election to the newly redistricted Georgia 8th, an upwardly mobile, white, suburban district (take a look here). Thanks again to Brian for the info.

Brian Leiter thinks that Lawrence Solum should stop blogging from conferences (implied reason: because he's too likely to misreport what people say). Readers won't be surprised to learn that I disagree (and so-- tentatively-- does Solum).

When people are criticized, there's often a tendency for them to say, "That is not what I meant at all, that is not it at all." Sometimes this is true, and the listener has misunderstood. Sometimes the speaker has mis-spoken. Sometimes the speaker has in fact misunderstood his own argument and is expressing propositions that he does not realize (often the case with complicated arguments that carry dozens of hidden assumptions and alternative possible assumptions clinging like barnacles to the sides). Sometimes the speaker has spoken the words that he intended to speak, but failed to realize a flaw in his argument, and now wishes to say something different than he did (since he didn't mean to be wrong, after all). In any case, the fact that some people who were criticized by Solum don't think Solum understood them properly shouldn't be taken too strongly. It's evidence, but far from proof positive.

[I believe it is Miss Manners who recounts the story of saying to her Uncle Harry, a notorious poltical bore with very strong views, "The trouble, dear Harry, with arguing with you is that you think the reason I'm not agreeing with you is that I didn't understand what you said."]

A more effective way of discrediting Solum's reporting would be to go through the papers, reports of other people who were there, etc., and argue these things out on the merits. That's time-consuming and often tedious, of course, but it's a fairer way to resolve genuine disagreement, and a more effective way of convincing me that Solum is wrong, or that his conference-blogging is unfair. I understand that may not be feasible here.

Look: The idea that bloggers report facts as they see them is nothing new. Nor is the idea that those bloggers are fallible, and that their perceptions are open to debate. Nor is the practice of academics (and even judges) insisting that other people are mischaracterizing their arguments-- sometimes they are right, and sometimes they are wrong. Nor is the practice of reputable journalists reporting things in ways that may be misleading or confused.

Normally, our reaction to that is to say, yes, it's a risk that people will think things that aren't true, but there are other people out there to email Professor Leiter, to email Professor Solum, to write in blogs and in newspapers and on listservs, to speak to one another in private, to add comments, criticisms, and caveats, and generally to try to set the record straight.

Now normally blogging works really well at mitigating reporting bias because a mannerly blogger links to the work he is discussing, and his readers can thus decide for themselves whether his characterization is fair. When blogging a conference, there's no hyper-text to link to. That makes it a little harder to easily fact-check the blogger, but it also makes the blogging that much more important.

And bloggers blog on the unlinkable all the time-- whether they're discussing their daily life, the behavior of their colleagues, a Wall Street Journal Op-Ed, or a speech given by a Supreme Court Justice at the University of Chicago Law School. Sometimes those bloggers state things wrongly or unfairly. Sometimes they don't.

All of these are the pros and cons entailed in blogging, and they're the reasons it's important to find bloggers whose judgment and perception one trusts. But none of those things make blogging from academic conferences uniquely bad, or outweigh the huge benefit given to the blogosphere by commentators as thorough, devoted, and (for my money) generally trustworthy as Professor Solum.

Can individual cases of Solum's reports be wrong? Absolutely. That's true of all such reporting, and it's a tradeoff we make when deciding whether to read what we know is one man's summary of what another man said in many more words. Still, none of us can go to every conference or talk or lecture or class that we would like to, and if we find reporters we believe to be generally reliable, we take some of their comments as the best substitute we can get. If Leiter's claim is that Solum is unreliable, I disagree (but I could be convinced otherwise).

I've prattled on for long enough. Mis-reporting is bad. But reporting is good. Blogs like Solum's and Leiter's-- reporting and counterpoint-- are the answer.

UPDATE: Chris St. Pierre chimes in too, echoing the "more speech is the solution, not less," line.

Suppose, for a minute, you think that homosexuality is definitely not wrong, and that homophobia is bad. Maybe that's easy for you, because you do think that homosexuality is okay, maybe it's hard for you. Anyway, bear with me.

Suppose, also, that you generally worry about anti-discrimination laws that apply to private actors. Maybe you're worried about impacts on free expression and association, maybe you're worried that it's counter-productive and creates resentment, maybe it's just some Libertarian thing. Anyway.

If you think both of those things, what are you supposed to do when confronted with a bill like Illinois Senate Bill 101? The bill would ban much private discrimination on the basis of sexuality. Should you oppose the anti-discrimination law because you generally oppose anti-discrimination laws? Or should you say, "homophobes are no better than racists, and I don't think we should discriminate between them?"

In other words, recognizing that one is caught up in a political culture war, and that one can't easily refuse to take sides (unless one simply ignores the whole issue and lets somebody else decide; which I'm tempted to do), which of the two above beliefs should give way?

If I were smarter, I would now reply with my tentative, yet brilliant answer. Alas.

From the Daily Kos:

...The brutal reality behind the loss of the south is that the south never was a part of America -- it was a medieval state within America, devoted to a "peculiar instituion" which nauseated all the other civilized people in America, and after the Civil War devoted a continuation of the "peculiar institution" by other means (namely, sharecropping).

Whenever the national news carries a particularly unbelievable example of lynching or mob violence, or some grotesquely bizarre miscarriage of justice, it almost always arises in the deep south -- meaning, from Texas on east to Florida. "The Thin Blue Line" didn't take place in California or Nebraska -- only in Texas. Churches weren't bombed by white supremists in Michigan or Maine to prevent a segment of the population from voting -- only in Alabama....

Eugene Volokh certainly can turn a phrase:

True, the Nazis and the Soviets spoke out against foreign threats, rallied their people with patriotism, and warned about espionage. They also ate ham and cheese (or in the Soviets' case, would have liked to eat ham and cheese, if they could get it).

I rarely blog about campaign finance reform, because there's only so long one can beat the same drum before it gets repetitive. But at Begging to Differ, the elusive Vance has an interesting post about the Soros anti-Bush campaign, and echoes my own feelings:

Quite frankly, I don't mind if a candidate is for sale, as long as we know he's for sale. Things will sort themselves out a lot better that way.

Pvt. Juan Escalante took a secret with him from Fort Stewart to Iraq.

Although he wore the same uniform and faced the same dangers as other U.S. soldiers, Escalante is an illegal immigrant. He enlisted by showing a fake green card he bought for $50.

"I feel I'm American," Escalante said Thursday. "I've lived here all my life. This is the only country I've ever known."

The Army sees him as a "valuable soldier" who risked his life to serve the United States, said Richard Olson, a Fort Stewart spokesman. "He's just like any American kid who joined the Army," Olson said.

The Army has helped Escalante apply for citizenship but could still discharge him for misleading a recruiter.

As one might have guessed, Escalante's family originally hales from our nearest Southern neighbor. His parents are currently fighting an immigration decision that has ordered them deported. Escalante was brought here when he was four years of age and has remained ever since, graduating from high school in 2002. Although I do not condone violation of the immigration laws, removal from the United States in the case of Private Escalante would be more akin to exile than deportation. As he himself put it: "'I don't know anything down there. I haven't even seen my grandparents in, like, 12 years,' he said."

(Incidentally, such exiles are not unheard of. Sometimes deportees who have lived here almost the entirety of their lives do not even speak Spanish when sent back to their country of origin. It's an odd fate for people whose immigration status was essentially foisted on them by parents who brought them here illegally at a young age.)

One of the lawyer's involved thinks that Escalante will end up being granted citizenship due to an Executive Order promulgated by President Bush. Randy Tunac, the proprietor of The Manifest Border repoduces the text of the order an suggests that it should, in fact, save Escalante from deportation. I hope that Escalante and his family fare well. However, the apparent reality that anyone can join our armed forces with forged identity papers is a little unsettling. There are aliens who do not consider themselves Americans who would be delighted at the prospect of enlisting. Of course, the sort of danger posed by such individuals is not limited to those with a certain immigration status.

Maureen Craig reveals that one of the authors of Pride and Promiscuity (the lost sex scenes of Jane Austen) is none other than David Auburn, author of Proof (the movie that brought Gwenyth Paltrow to the U of C)!

Kind of puts everything in a slightly different light. Would the myriad old-school Austen fans at the U of C have objected to welcoming Auburn's Proof on campus if they'd known?

As long-time readers will remember, in July this blog was graced with a guest appearance from a loyal reader, Chris Jones. (Said one of my co-workers, "I like the new guy, except when he talks about Canada.")

Well, Chris Jones and associates have now begun a new blog-- Points of Information.

This is particularly exciting because the ".ca" domain helps us acheive a critical mass of diversity on our blogroll.

Clint Bolick is vice-president of the Institute for Justice, an amazing Libertarian public-interest law firm. I had the (apparently unique) pleasure of hearing him deliver a speech to the 2003 Koch Fellows in a Pizza Hut. Now Another Rice Grad has gotten him to answer 20 Questions.

He discusses overdosing on Gin-and-Tonics, his favorite fiction, and much, much, more. Read it.

Someone unfamiliar with law school might marvel at such a hullabaloo. For the benefit of the uninitiated, membership on a school's flagship review is generally (and accurately) thought to enhance one's initial career prospects, including making prestigious judicial clerkships more attainable. Traditionally, membership selection on law reviews has been made in blind fashion (i.e., on an anonymous basis), with the actual selection criteria consisting of first-year grades and/or a writing sample.

Increasingly, it seems that this sort of pure merit selection is coming under fire and being altered due to its failure to produce the "right" results. For example, Vanderbilt Law Review has endured some controversy over the ethnic composition of its membership. The Crimson article notes that Harvard Law Review's member selection process already explicitly takes into account information "like race and disability status" in a certain number of "discretionary" selections that are made on some basis other than the merit-based norm. The sex of Review applicants is apparently not considered even in making these discretionary membership selections.

The Crimson story relies on a current Review editor, Meaghan McLaine, who supports the notion of sex-based "affirmative action," to make the case for such a measure. I place "affirmative action" in quotes, because, while it is clear that McLaine wants sex taken explicitly into account in the selection process in some fashion, it is not clear what specific mechanism she would implement.

What is clear from McLaine's statements, however, is her unabashed results-oriented rationale. Absent are the usual bromides about the benefits of diversity. This is all about redistributing precious law school honors:

But McLaine said the Review's situation deserves immediate attention because editorship can greatly benefit law students in applying for jobs.

"Not having women on the Law Review is influential with who gets clerkships or professorships—a lot of those clerks looking over applications are former-law-review people and you get the benefit of them knowing your character," McLaine said.

Harvard Law Review spells out its current membership selection process and criteria on its website:

In recent years, the number of of students who complete the [write-on] competition has ranged from 200 and 220. Of these, between 41 and 43 will be asked to join the Review.

Fourteen editors (two from each 1L section) are selected based on a combination of their first year grades and their [write-on] competition scores. Twenty-two editors are selected based solely on their competition scores. The remaining editors are selected on a discretionary basis. Some of these discretionary slots may be used to implement the Review's affirmative action policy.

The competition consists of two parts. The subcite portion of the competition, worth 40% of the competition score, requires students to perform a technical and substantive edit of an excerpt from an unpublished article. The case comment portion of the competition, worth 60% of the competition score, requires students to describe and analyze a recent U.S. Supreme Court or Court of Appeals decision.

Interestingly, the Crimson article relates that Law School Dean Elena Kagan opposes altering the above policy in order to add sex-based affirmative action, as do all three of the Review's (female) faculty advisors. Kagan's reported rationale is a fear that such a policy change would be pregnant with the implication that women cannot compete unless the terms of the competition are altered in their favor. (Why this rationale does not apply with equal force to qualities like ethnicity and disability status, which apparently may be considered in making discretionary membership selections, is left to the reader to discern.)

What little has been reported of the confidential inquiry's findings and recommendations suggests that any changes that the Review ultimately makes may well be posited on the notion that Harvard Law School's female population just cannot compete. As reported in the Crimson:

The report suggests eleven new ways to change the application process, which include reducing the maximum weight of grades to 30 percent for the 14 students selected based on grades and the writing sample. Other scenarios include selecting the top male and top female from each section and completely eliminating "grade-ons" as a selection category.

None of the above suggestions does women much credit, unless one thinks that the entire law school grading system is systematically biased against females.

Further Reading: Stuart Buck argues that, given that anyone can apply and selection is anonymous, "[i]t is inconceivable that any genuine discrimination could be occurring."

Chris Geidner offers a rebuttal premised on the controversial notion that women and men, perhaps, express themselves differently and that the predominately male membership of the Review therefore unconsciously perpetuates itself. His fellow En Banc pundit, Jeremy Blachman, concurs in this assessment. However, Geidner is bedeviled by at least one skeptical commenter. (One wonders if Geidner and Blachman think that Vanderbilt Law Review's ethnic diversity difficulties are the result of different ethnic writing syles.)

Unlearned Hand suggests contra Kagan that, "[w]omen as a group ought not be systematically "underperforming" according to the law school rubric, and if they are, I for one think it's a problem with the rubric." This response at least intimates compatibility with, if not some inclination toward, the views espoused by Geidner and Blachman.

Steve of Begging to Differ has written that the Review ought to release whatever selection data it has in its possession as well as the fruits of its confidential inquiry in order that all of our musings might be better informed. He also speculates as to what any such statistics might reflect.

"Initially when they first called me about (the case) . . . I thought it was generally an accident," [the county prosecutor] said. "It was clear from the tape that he planned to hurt the player from Coshocton, and you saw him look around to see where the officials were."

During a dead ball, T.J. Helbling was flagrantly fouled by Malloy, taking an elbow to the mouth and damaging four of his teeth badly enough that he won't be able to finish the season. Helbling underwent oral surgery to straighten his lower teeth, which were jammed backward at a sharp angle, and to set his jaw which was broken in two places.

* * *

After consultation with the victim's family, Malloy was sentenced to 180 days in jail. He will serve two days in jail and the remaining 178 days are suspended. He has to pay restitution—Helbling's medical bills—and be a law-abiding citizen for a year.

The Legal Reader acknowledges that the foul in question "sounds pretty nasty," but seems to have some lingering doubts about the propriety of a criminal prosecution. I'm not sure why this is the case, given the facts and the law involved.

The Times Recorder reports that the assailant was originally charged with Felonious Assault, a felony of the second degree, under Ohio Rev. Code § 2903.11(A)(1). The charge was amended to simple Assault, a misdemeanor of the first degree, under Ohio Rev. Code § 2903.13(A). The teen pled guilty to the latter, which requires that "[n]o person shall knowingly cause or attempt to cause physical harm to another."

The only real difference between the two charges is that Felonious Assault requires "serious physical harm," as opposed to mere "physical harm." The two terms of art are defined by yet another statute. See Ohio Rev. Code § 2901.01(A). "'Physical harm to persons' means any injury, illness, or other physiological impairment, regardles of its gravity or duration." Id. at 2901.01(A)(3). "'Serious physical harm to persons'" means, in relevant part, "[a]ny . . . condition of such gravity as would normally require hospitalization," or "[a]ny physical harm" that entails "some temporary, serious disfigurement" or "acute pain of such duration as to result in substantial suffering." Id. at 2901.01(A)(5)(a), (d)-(e).

Accordingly, a charge of simple Assault for the behavior in question is rather uncontroversial. Indeed, it seems that Felonious Assault is not really a stretch under the circumstances. The Times Recorder article does not specify why a plea to the lesser charge was proferred or why the state accepted a no contest plea rather than demanding an unambiguous plea of guilty.

Perhaps, what gives The Legal Reader pause is the notion of being sentenced to jailtime for a sports-related infraction. It is a common belief that participation in sporting activities entails certain risks and that those who choose to participate assume such risks, that they consent to contact that would not otherwise be consensual in other settings. This belief is actually well-founded—in part.

Discussion of assumption of risk, as this principle is known in the common law, generally arises in tort cases for battery, which is the civil law tort equivalent of criminal assault. In some states, e.g., Texas, the elements for civil battery and criminal assault are identical. In Ohio, the two appear to be substantially similar. See Guerrero v. C.H.P. Inc., No. 78484, 2001 WL 931640, at *4 (Ohio Ct. App. Aug. 16, 2001) (unpublished opinion) ("The essential elements of battery are: the tortfeasor intends to cause a harmful or offensive contact, and in fact causes a harmful or offensive contact which damages the plaintiff."). Hence, it is instructive to consider tort suits that arise in this context as well.

Ohio has a some very interesting tort cases that have arisen in this very context. In Marchetti v. Kalish, the Supreme Court of Ohio addressed the intersection of tort and sports in a case that revolved around injuries sustained in a neighborhood game of a modified version of "Kick the Can." 559 N.E.2d 699, 699 (Ohio 1990). (An appendix to the case actually contains the "traditional rules of 'Kick the Can,' as stipulated by the parties. Id. at 699 n.1, 704-05.) The state's high court nicely summarized American jurisprudence regarding sports-related injuries:

However, courts traditionally have not been inclined to allow a cause of action for injuries received during participation in such activities. In Kuehner v. Green (Fla.1983), 436 So.2d 78, 81, Justice Boyd, concurring specially, noted that "[h]istorically, the courts have been reluctant to allow persons to recover money damages for injuries received while participating in a sport, especially a contact sport, unless there was a deliberate attempt to injure. In denying recovery, the courts have often explained that a person who participates in a sport assumes the risk that he or she may be injured. Only recently have some courts allowed a sport participant to recover damages for injuries resulting from unintentional but reckless misconduct. See Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir.), cert. denied, 444 U.S. 931, 100 S.Ct. 275, 62 L.Ed.2d 188 (1979); Nabozny v. Barnhill, 31 Ill.App.3d 212, 334 N.E.2d 258 (1975). These courts reasoned that a sport participant does not assume the risk of injuries resulting from bodily contact uncustomary to or prohibited by the rules of the particular sport."

Likewise, while allowing a recovery for a sports injury based on intentional tort, a Michigan court has stated that "[p]articipation in a game involves a manifestation of consent to those bodily contacts which are permitted by the rules of the game. Restatement of Torts, 2d, § 50, comment b. However, there is a general agreement that an intentional act causing injury, which goes beyond what is ordinarily permissible, is an assault and battery for which recovery may be had." Overall v. Kadella (1984), 138 Mich.App. 351, 361 N.W.2d 352, 355. Thus, courts generally allow a cause of action for injuries sustained in recreational or sports activities only under reckless or intentional tort theories.

* * *

. . . Thus, we join the weight of authority set forth above and require that before a party may proceed with a cause of action involving injury resulting from a recreational or sports activity, reckless or intentional conduct must exist. We hold that where individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant's actions were either "reckless" or "intentional" . . . .

Id. at 700-01, 703-04.

These same principles apply to any recreational or sporting activity, whether it is "organized, unorganized, supervised or unsupervised." Id. at 702. The "expectations of the participants" determine whether an activity is recreational and thus subject to these special rules regarding consent and bodily contact. Konrad v. Morant, 627 N.E.2d 1007, 1009 (Ohio Ct. App. 1993). In a case handed down the very same day as Marchetti, Ohio's high court applied these principles to a suit that centered on injuries sustained in a game of golf. Thompson v. McNeill, 559 N.E.2d 705, 706 (Ohio 1990). In Thompson, the court elaborated on the principles announced in Marchetti:

It is necessary to fashion a special rule for tort liability between participants in a sporting event because playing fields, golf courses, and boxing rings are places in which behavior that would give rise to tort liability under ordinary circumstances is accepted and indeed encouraged. Paradoxically, however, amateur and professional athletes are expected to confine their behavior to that which is allowed by the rules of the game.

* * *

. . . [T]he spectator or participant must accept from a participant conduct associated with that sport. Thus a player who injures another player in the course of a sporting event by conduct that is a foreseeable, customary part of the sport cannot be held liable for negligence because no duty is owed to protect the victim from that conduct. . . .

Id. at 707.

As the rules of any given game may vary, the duties owed to one's fellow players vary. For example, what might not constitute the tort of battery in the context of a contact sport like hockey might very well be a tort in tennis. Id. at 708.

I'm not sure whether soccer ought to be classified as a contact sport. It is less physical than hockey or football, but nonetheless seems to feature a high potential for bodily contact amongst players vying for the ball. Whatever the case, a premeditated elbow to the face of another player of sufficient force to cause injuries requiring surgery is well beyond the rules and customs of the game. Conduct this gratuitous seems a likely candidate for criminal charges.

No doubt, there are closer cases to be had. Last evening, I attended a "farm league" hockey game. While penalized by the rules of the sport, fighting is customarily a part of hockey. Hockey fans delight in extracurricular combat. Indeed, such conduct is often encouraged and celebrated. For example, when fights broke out at the game that I attended, the video scoreboard would feature a graphic of a ringing bell akin to those used in boxing matches and the theme song to Rocky was played.

Obviously the customs of hockey allow for a good deal more than might be permitted in soccer. But even in hockey, I am not sure that the sort of behavior in the Ohio soccer case might not lead to liability in tort or in criminal law. After all, the assailant in question ensured that the game's officials were not looking and then proceeded to intentionally strike his victim with sufficient force to end his season. I think that the instant defendant should count himself lucky for having to serve a mere two days of his 180-day sentence.

Mark Kleiman asks:

Here's the puzzle: with the rush-hour commute from the High Desert to Los Angeles now clocking in at two hours each way, and the state of California tottering toward bankrupcy, why hasn't the idea of congestion prices on the freeways at least risen to the status of a political loser?

The appeal of congestion taxes is that they're welfare increasing to drivers as a whole-- you put a driver to a choice between paying some money or keeping his old habits, so only the drivers who don't value their habits too highly have to change their lives. Then you give all the money back, but distribute it broadly to all drivers, so that as a whole the drivers haven't actually lost any money-- it's just that the drivers who congest roads are effectively paying the drivers who don't for the inconvenience.

But this scheme is only popular with the drivers if they get their tax money back. If they don't, then they all rightly complain, "yeah, our roads are less crowded, but we're also all a lot poorer."

Now, money in the state treasury doesn't go nowhere-- government isn't a black hole-- but it also doesn't go directly back to the people who paid it in there. It goes to finance all sorts of doings in the state.

This is, in essence, like saying to all commuters "hey, why don't you guys all subsidize the budget problem? Oh, but as a consolation for your lost money, we'll solve your congestion problem." Now, congestion is problematic, but so is losing money, as a group. Commuters are probably right to oppose congestion taxes, so long as there's any serious risk of the money being used to "fix the state's budget problems." [Note: There is some chance that commuters could still benefit from a Kleiman-style commuter tax, if the elasticities of money and congestion are of the proper magnitudes.]

Kleiman references London, which is particularly interesting because that's what we're studying right now in microeconomics. The question we were asked this evening was "If congestion charges are such a good idea, why don't we see more of them?" The answer seems to be, hands down, redistribution. [London's congestion tax is made more politically feasible for two reasons-- one, the fact that a lot of it is paid by folks who don't live in London, and therefore don't get a vote, and two, the general belief (true or not) that money collected from the congestion tax goes back to subsidzing commuters either in fuel-tax reductions or investments in the Underground.]

In other words, yeah, traffic jams are a problem, but so is letting the government take money from a small group (commuters) and spread that money out among everybody. If somebody can figure out a realistic way to ensure that commuter taxes will go back to commuters (by increased road subsidies, direct payment, etc.), the idea just might get elevated to "political loser" after all.

[Commuters are the group I've focused on here because they're the group who get the benefits of reduced commuting congestion. You could try to sell the plan among non-commuting Californians by saying "Hey, I've got this great idea. We can tell commuters we'll solve their congestion problem, but rather than giving the tax money back just to the commuters, we'll smuggle it into the budget." But if you got caught saying that on tape . . .]

Ampersand asks a pair of related questions about pornography, springing off of this post by guest Crescatter Jim Leitzel (now of Vice Squad):

Censorship of porn sites: Why should we care?...

(I)s there any evidence to support the theory that censorship of extreme rape porn will inevitably lead to the censorship of soft porn? After all, child pornography has been aggressively censored for decades, without any apparent "slippery slope" effect completely destroying our other free speech rights.

I'll ponder the "slippery slope" argument first. Given that our tolerance for pornography has probably been going, in general, up rather than down, it may be hard to pinpoint a "slippery slope" down which "good porn" is slipping. Of course, free speech zealots will point out that even child pornography bans haven't been entirely devoid of slippery slopes.

While the Free Speech Coalition has won the first round of cases on the issue of banning fake child pornography (that is, computer generated pictures that look like child pornography, but didn't actually require child abuse to make), the issue is only a Thomas-vote-switch away.

How slippery is the slope? I don't know. Unfortunately, defenses of truly unpopular speech usually have to be from the "next time they're coming for you" school of rhetoric, rather than arguing that there is simply inherent value in permitting free expression, or even that the speech at issue makes some people very happy. To quote Tom Lehrer:

I do have a cause though. It is obscenity. I'm for it. Unfortunately the civil liberties types who are fighting this issue have to fight it owing to the nature of the laws as a matter of freedom of speech and stifling of free expression and so on but we no what's really involved: dirty books are fun. That's all there is to it. But you can't get up in a court and say that I suppose. It's simply a matter of freedom of pleasure, a right which is not guaranteed by the Constitution unfortunately.

BeldarBlog has now eliminated comments. I note this with particular irony because Beldar has, in the past, been a fairly harsh critic of my anti-comments Jihad.

Aww . . .

Does anybody know if the fashion for how to wear one's necktie has changed dramatically in the past 60 years? I ask because I recently watched a couple of Humphrey Bogart movies (The Big Sleep and Key Largo) and everybody was wearing their tie much shorter than most people do now-- the tip of the tie was probably two inches or so above the belt buckle, maybe more. At first I thought it was a way of representing the slovenly bad guys, but then even Bogart himself was doing it. Seems to me that most men now prefer their tie tip to just barely touch the top of their belt buckle. Is this a change? If so, when did it happen?

It's said that it's John F. Kennedy's fault that men now go around sticking their hands in their suit-jacket pockets. Is this his fault too?

UPDATE:

A reader emails:

The higher neckties are a bit of an old-style phenomenon, and mostly went along w/ three-piece suits (where it doesn't matter).

Also, Bogart and Co, like me, have a tendency to wear Windsor knots in their ties. (This makes the tie shorter.) Modern habit is mostly four-in-hand.

At least, that's what I was told by a couple of suitmakers... I couldn't cite it like the Clerk. :)

Oxblog's Josh Chafetz posts (and I copy in full):

YOUR DAILY WORDS OF POLITICAL WISDOM:

Nobody's talking about anybody's momma

That's Louisiana Democratic Party Chairman Mike Skinner, explaining why the rhetoric of the Louisiana gubernatorial race can't be called "negative."

The article he links to is here, but that was the highlight. Although, this story is pretty good, too:

Many point to Edwin Edwards' first race for governor in 1971, which included a minor candidate named Warren J. "Puggy" Moity, who ran an infamous Sunday morning television show devoted to political mudslinging. He harped on Edwards and called him gay. Edwards later neutralized the accusations by strolling up to Moity at a political forum and kissing him on the cheek.

Exciting day Saturday -- the runoff election and the #3 ranked LSU Tigers face Bama. Now where can I find some ESPN?

Professor Volokh,
don't leave us alone again--
with that RantingProf.

Cori Dauber has left the Volokh Conspiracy, so I can now remove the "Purer Volokh" link at the side, which Chris Lawrence has immortalised here.

Last week was devoted to defending Oberlin's sexfest. Now J.H. Huebert has investigated the school's official website and decided that he was much better off going to Grove City College.

For myself, I'm not at all sure would be the lesser of two evils-- a roommate "secretly" hoping to make me his first homosexual experience (while posting this secret on the school website), or a school whose "Intellectual inquiry remains open to the questions religion raises and affirms the answers Christianity offers."

But having a diversity of biases available for undergraduate education seems like a far better choice than having none.

I was going to discuss the lost sex scenes of Jane Austen, but being a relative newcomer to Austen fanhood, I've decided I'll leave that task instead to my sister and Austentatious (via Bookslut).

GroupLawBlog En Banc has just cut its ranks down to six. Does this represent a new streamlining, or will new appointments fill the open seats?

Keep an eye out this week for a new guest, one much more Curmudgeonly than any of our previous guests have been.

If you don't already read The Curmdugeonly Clerk's Weblog, you really should, but hopefully this week you'll find out what you've been missing.

As midnight comes, we will lose our illustrious guest, Vice-blogger Jim Leitzel. Don't forget to investigate his permanent home at Vice Squad.

Today's New York Times provides this state-of-the-debate piece on obesity policy in the US (registration required). Seems that we are hopelessly divided:

"The public, meanwhile, seems split on the question [of whether the government should intervene to combat obesity]. According to a poll by the Harvard School of Public Health in May, half of those surveyed feel that obesity is a 'private matter,' while half said it is a 'public health issue that society needs to help solve.'"

The final paragraph of the Times article suggests a compromise that I would sign onto, barring no detail-dwelling devils: "That suggests that between the two sides is a public hungry for balance: the government can help, but no one can force you to turn down that slice of chocolate cake."

Obesity policy has been remarked upon before (chiefly, here) in Vice Squad. Speaking from introspection, some people have a problem with self-control when it comes to eating, as they do with many other pleasurable activities. But not everyone's health is threatened by his or her gluttony. This presents one final opportunity during my guest week at Crescat to push my vice policy agenda: public policy should recognize that some but not all people have self-control problems with potentially addictive activities and substances. (The subset of people who do have a problem varies among the vices and over time, of course.) Given this recognition, it is possible to construct policies that can be very helpful for bolstering the self control of those who are most susceptible to problems, without imposing significant costs on rational gluttons or addicts or what have you. (For an econ-y example, see this paper by Matthew Rabin and Ted O'Donoghue, "Studying Optimal Paternalism, Illustrated by a Model of Sin Taxes," and for a particular type of self-control "irrationality," see this previous Vice Squad post.) Prohibiting the eating of chocolate cake is too imposing upon rational diners. But requiring the provision of information, or maybe even taxing all those nasty foods that I consume, can really help some folks without imposing much on the rationals out there. (That is, I cannot oppose such policies on principle (as I suppose libertarians would). I might still think that any specific proposal along these lines would be a mistaken policy, though.)

Private policy, of course, can do the same thing, and no doubt sometimes it is best to leave the development and promulgation of self-control aids to the private sector. For some reason, however, I haven't stumbled across many restaurants that require you to order your chocolate cake before your meal, or that prevent diners from actually seeing the cake before ordering.

Well, all of this cake talk has made me hungry, so I must go forage. Thanks to the good people of Crescat Sententia for bringing me on board this week -- your hospitality is much appreciated. I'll now return to Vice Squad, a lonely and desolate outpost of the blogosphere ("an ill-favoured thing sir, but mine own"), where I shall rest content in the knowledge that once, once there was a week when my vice policy ramblings bored or offended a much larger audience, an audience that even included some folks beyond my closest kin.

Thanks again, and all the best, CSers.

How not to impress any woman worth impressing.

Christopher Nyrop (I have no idea who that is) once reportedly said: "A kiss too or from a woman we love is too tender a pledge of affection to bear the gazes of strangers." Moscow's city authorities seem to agree.

If initial reports are to be believed (and maybe they are not), Moscow is considering a kissing ban. The ban would only apply publicly (particularly on subways and, apparently, escalators) -- lovers could smooch away behind closed doors.

I'm sad to admit that my first reaction to this move was actually mixed-- proof that I've spent too long working on my "economics of traffic congestion" homework. Kissing in public imposes external costs on people, and therefore it should be taxed or even prohibited, I said to myself. Sure, prohibition is a bit harsh, but it would be very difficult to set up an efficient system of kissing taxes. And since the fine is only about $20, it is essentially a kissing tax, relabeled a fine. Hum. Neat.

Then the real me, the me that in earlier days decided to see how many train-stops you could make a single kiss last*, came to my senses. Sure, people don't like to see public kissing, but they don't like to see a lot of things-- ugly people, mean people, cell phones, crying babies, burning flags, &c. For the most part we regard those as unrestrictable free expression rather than open topics for regulation.

On the other hand, we do have laws to regulate "public morals" (like laws that forbid or restrict publc nudity (laws I'm not entirely comfortable with, I might add)), which is precisely what the kissing law is supposed to do. So isn't the difference between banning orgies on the street and banning make-out sessions on the escalators a difference of degree rather than kind?

Yes, but that doesn't make it right.

[All that said, while public kissing ought to be legal, the polite and the wise will consider exercising some restraint. As Miss Manners repeatedly points out, people who witness public displays of affection are usually either wondering what the participants see in one another, or cackling happily when the relationship turns sour.]



* Sad to say, I've forgotten the answer.

My first (and third) guest posts at CS mentioned that the legal machinery to shut down porn producers and distributors remains in place in the US. A reader e-mailed to alert me to one current prosecution, that against a couple who run Extreme Associates; Extreme proclaims itself to be "The Hardest Hard Core on the Web," and based on descriptions of some of the movies seized in the federal raid, I imagine that it needn't fear any proscecutions for misleading advertising. The two defendants are facing 50 years in prison and $2.5 million in fines. Here's a report dated August 28, 2003, from ABC News.com. In another Internet porn case, a couple was found guilty of three federal obscenity charges last month by a Dallas jury, employing the contemporary community standards test. Apparently, that case involved a five-year investigation.

In my initial CS guest post, I claimed that the enormous increase in porn availability in the US in the last 50 years had taken place with little in the way of demonstrable harm. This judgment is far from universal. The folks at Concerned Women for America could hardly disagree more. Their chief counsel has a paper, "Hard-Core Harm: Why You Can't Be Soft on Porn," available here. The abstract claims that, far from being harmless, "pornography contributes to anti-social behavior and crime, especially sex crimes; it contaminates public health, destroys marriages and families, defiles religious communities, hinders education and depletes educational resources, increases abortions and taxes, weakens the economy." (Odd pairing of abortion and taxes, no?) The paper itself as well as this June report on the Dallas porn case (also by the chief counsel), provides a useful listing of recent federal obscenity prosecutions. The ABC News.com article linked above notes that our nation's Attorney General, John Comstock Ashcroft, intended an anti-obscenity drive back in 2001, but the 9/11 attacks postponed the anti-porn crusade. (OK, the Comstock part of that is my own addition.) Mr. Comstock Ashcroft released a memo announcing an anti-obscenity initiative in May, 2002.

Lawrence G. Walters, who maintains a very interesting vice-relevant website at firstamendment.com, has commented on the prosecution of Extreme Associates here. I'll give the last word (for now) to Rob Zicari, one of the defendants in the Extreme Associates case, in a quote that appears in the ABC News.com story:

"'The funny thing about my business is I don't force it on anybody,' said Zicari. 'The only people that are going to be forced to watch my movies are the 12 people that sit on that jury.'"

In the end, it was the Sunday afternoons he couldn't cope with, and that terrible listlessness that starts to set in at about 2:55, when you know you've taken all the baths you can usefully take that day, that however hard you stare at any given paragraph in the newspaper you will never actually read it, or use the revolutionary new pruning technique it describes, and that as you stare at the clock the hands will move relentlessly on to four o'clock, and you will enter the long dark teatime of the soul.

in a city that knows how to keep its secrets

No, that's not quite right. Try - It's a cold day in Chicago, and the automatic sprinklers on the southeast side of the quads have not been turned off. That corner of the lawn looks like it's covered in ice cubes after a GSB party. One tree's branches are covered with some of the few icicles I've seen in this city. Each leaf of grass is coated with a cylindrical layer of ice about a centimeter in diameter. It is a sight that makes me wish I had a decent camera. That, and wonder why the sprinklers haven't been turned off.

Lists of "100 best" books are silly, as the blogospheric reaction to the Guardian's list shows. But such lists are also fun to look at (witness that same reaction). Therefore, by using a complex and secret voting scheme, the Crescat Sententia Editorial Board has arrived at a list of the real best 100 novels.

Such lists are, of course, arbitrary, since it's not immediately clear what axis "bestness" is to be measured on, nor how one should aggregate the votes. That said, our list displays far finer literary taste than The Guardian, even though my beloved Ada ranks unforgivably low.

What's a little funny is how much our list looks like the schizeophrenic combination brainchild of a literature-loving romantic girl and geeky intellectual boy. What's also fun is to try to guess which Crescatters are responsible for which books.

1. Pride and Prejudice, by Jane Austen
2. The Remains of the Day, by Kazuo Ishigruo
3. Harry Potter Series, by J.K. Rowling
4. The End of the Affair, by Graham Greene
5. All The King’s Men, by Robert Penn Warren
6. Lolita, by Vladimir Nabokov
7. The Princess Bride, by William Goldman
8. Invisible Man, by Ralph Ellison
9. The Name of the Rose, by Umberto Eco
10. Syrup, by Max (Maxx) Barry
11. Emma, by Jane Austen
12. The Dirk Gently Series, by Douglas Adams
13. Ada, by Vladimir Nabokov
14. The Hitchiker’s Guide to the Galaxy, by Douglas Adams
15. 100 Years of Solitude, by Gabriel Garcia Marquez
16. Persuasion, by Jane Austen
17. The Blind Assassin, by Margaret Atwood
18. The Great Gatsby, by F. Scott Fitzgerald
19. Pale Fire, by Vladimir Nabokov
20. Ender’s Game, Speaker for the Dead, &c., by Orson Scott Card
21. Oryx and Crake, by Margaret Atwood
22. Survivor, by Chuck Palahniuk
23. Ana Karenina, by Leo Tolstoy
24. The Three Musketeers Series, by Alexandre Dumas
25. The Divine Comedy, by Dante Alighieri
26. The Unbearable Lightness of Being, by Milan Kundera
27. Tess of D’Urbevilles, by Thomas Hardy
28. High Fidelity, by Nick Hornby
29. Howard’s End, by E.M. Forster
30. Lullaby, by Chuck Palahniuk
31. The Moon is a Harsh Mistress, by Robert Heinlein
32. Jane Eyre, by Charlotte Bronte
33. The Heart of the Matter, by Graham Greene
34. Cold Comfort Farm, by Stella Gibbon
35. My Antonia, by Willa Cather
36. The Big Sleep, by Raymond Chandler)
37. To Kill a Mockingbird, by Harper Lee
38. Middlemarch, by George Eliot
39. Song of Fire and Ice, by George R.R. Martin
40. Love in the Time of Cholera, by Gabriel Garcia Marquez
41. Crime and Punishment, by Fyodor Doestoevesky
42. What Maisie Knew, by Henry James
43. American Pastoral, by Philip Roth
44. Galveston, by Sean Stewart
45. If On a Winter's Night a Traveller, by Italo Calvino
46. Catcher in the Rye, by J.D. Salinger
47. Mansfield Park, by Jane Austen
48. Madame Bovary, by Gustave Flaubert
49. Youth in Revolt, by C.D. Payne
50. Moby Dick, by Herman Melville
51. Sense and Sensibility, by Jane Austen
52. Big Trouble, by Dave Barry
53. Cat’s Eye, by Margaret Atwood
54. Villette, by Charolotte Bronte
55. The Last Chronicle of Barset, by Anthony Trollope
56. Phineas Finn, Phineas Finn Redux, by Anthony Trollope
57. Darlington’s Fall, by Brad Leithauser
58. This Real Night, by Rebecca West
59. The Baron in the Trees, by Italo Calvino
60. Summer, by Edith Wharton
61. The Unconsoled, by Kazuo Ishiguro
62. Cecilia, by Frances Burney
63. The Secret History, by Donna Tartt
64. Dangerous Liaisons, by Choderlos de Laclos
65. Mr. Scarborough’s Family, by Anthony Trollope
66. The Fellowship Lord of the Ring(s), by J.R.R. Tolkien
67. A Room with a View, by E.M. Forster
68. The Duke’s Children, by Anthony Trollope
69. Breakfast at Tiffany’s, by Truman Capote
70. Daniel Deronda, by George Eliot
71. The Dumas Club, by Arturo Perez-Reverte
72. Baudolino, by Umberto Eco
73. Brideshead Revisited, by Evelyn Waugh
74. The Fountainhead, by Ayn Rand
75. David Copperfield, by Charles Dickens
76. Catch-22, by Joseph Heller
77. Great Expectations, by Charles Dickens
78. The Manticore, by Robertson Davies
79. The Maltese Falcon, by Dashiell Hammitt
80. Heart of Darkness, by Joseph Conrad
81. Good Morning, Midnight, by Jean Rhys
82. The Series of Unfortunate Events, by Lemony Snicket
83. Sula, by Toni Morrison
84. The House in Paris, by Elizabeth Bowen
85. The Little Friend, by Donna Tartt
86. The Death of the Heart, by Elizabeth Bowen
87. Gaudy Night, by Dorothy Sayers
88. The Discworld Saga, by Terry Pratchett
89. Gone With the Wind, by Margaret Mitchell
90. The Fountain Overflows, by Rebecca West
91. Possession, by A.S. Byatt
92. The Island of the Day Before, by Umberto Eco
93. God Knows, by Joseph Heller
94. The Cat Who Walked Through Walls, by Robert Heinlein
95. Candide, by Voltaire
96. The Vagabond, by Colette
97. Tom Jones, by Henry Fielding
98. The Fencing Master, by Arturo Perez-Reverte
99. Portrait of a Lady, by Henry James

Chicagoland continues to stake its claim to be the world leader in vice-related reverse sting operations, in which officers pose as sellers of vicious services. Since August, some 2,300 of our friends and neighbors have been arrested when allegedly attempting to purchase drugs from undercover officers posing as drug sellers. Though only charged with a misdemeanor, those arrested get to be immediately punished, even prior to any tiresome due process or adherence to that antiquated notion of being proven guilty beyond a reasonable doubt. Their cars are confiscated at the time of arrest, and they are charged $650 to recover them. This brilliantly conceived operation has eliminated all drug use throughout the Chicagoland area, though it does lack the drama of having gun-drawn officers force high school students onto the floor before subjecting their knapsacks to a search for drugs.

Success spawns imitators, and now Chicagoland is on the verge of eliminating prostitution. On five occasions since October 2, reverse stings set up in suburban Cook County have yielded a total of 113 arrests of our friends and neighbors (106 men and 7 women) for would-be purchases of sexual services, according to this article (registration required) in the November 8 Chicago Tribune. Oh yes, arrestees' cars are confiscated, though for some reason the retrieval price is given as only "more than $100". Only 113 arrests, only $100 per car confiscation -- suburban Cook County sounds almost like a rube next to its sophisticated city of Chicago neighbor. Oh, but they do have this wrinkle -- names and addresses of all those arrested in the sweep have been posted on the Web. (Incidentally, the name-and-shame-via-the-web approach to prostitution control has been tried in other jurisdictions, including Minneapolis.)