I'm going home! And I'm catching Endymion!

Crow's Nest Music at State & Jackson is having a clearance sale-- CDs are $11 or 25% off (if they're already under $11). This discovery was not a boon to my bank account, but I can now verify that Terry Teachout is right-- It is not possible to be unhappy while listening to Count Basie’s Jive at Five.

In her Guide to Excruciatingly Correct Behavior, Miss Manners writes:

Gentlemen, to this very day, walk on the street side of the sidewalk, unless they are European gentlemen, in which case they walk to the lady's left. Miss Manners, who can bear the idea that styles of clothing change, but not that the small courtesies of life do, firmly believes that the only reason men do not tip their hats is the same as the reason they no longer smack one another across the face with their gloves when they are angry: They don't have the sartorial equipment.

From Kieran Healy:

[The Volokhs] are busy at the moment trying to convince their readers that, whatever Paul Craig Roberts thinks, U.S. taxpayers are not less free than slaves. Eugene Volokh has devoted about 10,000 words of his fine legal mind to this question, so far. He even wrote up a helpful table outlining the relevant differences between 19th century U.S. slaves and 21st century U.S. taxpayers. I find myself wondering just what you'd have to say to get Eugene to write "Oh piss off, you ignorant little troll."

In tomorrow's On Language, William Safire blends the political and the grammatical to ask, "So . . . did Bush claim an imminent threat?"

None other than Dan Drezner, of course, has already moderated this question: Part I, Part II, Part III, Part IV, Part V, and The Verdict.

Among the people I don't understand are those who think that bread machines are great. They're not. They produce a loaf that tastes undeniably like it's been through something electronic to mix it. It's still better than WonderBread, but the bar's not high.

It's easy, they say.
- So is heating water, stirring, and kneading, if you have two hands with working wrists.
It's quick, they say.
- Twenty minutes to mix it my way, and then they both have to rise and bake.
I don't have 20 minutes comes next.
- Were you planning on cooking dinner for with that bread machine bread? Because if you have homemade bread, just add some meat and cheese for sandwiches. Maybe some fruit, a salad, or Campbell's. If you've got the homemade bread, people aren't going to care so much what you're serving it with.
Finally, I don't have to get my hands all covered in flour and dough.
- What's the fun of not? After a long week, it feels good to beat and knead some dough into order. It takes the tension out.

UPDATE: Some think I overlook the joys of waking up to fresh-baked bread. Shape the loaves, cold rise them in the fridge overnight, stick them in the oven, and they should be done about the time you get out of the shower, awake enough to appreciate them.

Honey Whole Wheat Bread:

Heat in saucepan until warm (warm is whatever the packet of yeast says, or not so hot that you can't leave your hand in the water):
3 c. water or potato water
1/2 c. honey
2 T. veggie oil

Combine in a large bowl:
3 c. whole wheat flour
1 T. salt
2 pkg. dry yeast
(If you're a real Mennonite, or want more protein, you can add 1/2 c. of dry milk here. I never have.)

Pour warm (not hot) liquid over flour mixture. Whisk until mixed. Stir in:
1 additional c. whole wheat flour

Gradually stir and knead enough white flour (4-4.5 cups, maybe even 5) to form a nice dough. It shouldn't be too sticky -- you should be able to pick it up with unfloured hands without it sticking to your skin. It shouldn't be too floury, else it will turn out tough. It will be theoretically possible to work more flour into the dough. Don't. The dough should be smooth and stretch nicely.

Place in greased bowl and grease the exposed parts of the dough (use solid Crisco), let rise until double in bulk. Punch down, divide dough in half and shape into loaves. Place in greased 9X5” bread pans. Cover and let rise 40-45 minutes. Bake at 375 degrees for 40-45 minutes. Butter the tops when it comes out of the oven. Turn out onto wire racks or a cutting board to cool.

Could John Kerry be the new champion for vice-lovers of various stripes? Nikkie Eitmann and Slate discuss.

Dispositive and Notes from the (Legal) Underground have each responded to my calls for much-loved poems. Dispositive gives us Roethke's "The Waking", which is quite nice, though doesn't, in my opinion rise to the first-tier level of "If I could tell you," or "One Art". Notes opts for three different poems, two of which (oddly enough) I read in senior-year English.

My co-blogger Matt Reading will be playing guitar tonight before the Off-off show.

Fri. Feb. 6, 8:00 (sharp!); The Blue Gargoyle (across from Bartlett in University Church); Tickets: $4 (covers Matt's performance and the Off-Off show).

John Rockwell would like opera singers to sing with greater abandon. Currently many opera singers avoid this to preserve the life of their voice.

Presumably, one reason opera singers don't act like rock stars is the nature of their comparative markets-- either it's comparatively harder to become an opera superstar or the comparative returns to being an opera superstar are lower. In any case, opera singers don't "go for broke" at current price and demand levels.

But if opera patrons were willing to shell out big bucks to see great voices cut loose with wild abandon (as they once did for Callas), maybe more great voices would be willing to cut loose, cut short their careers, and happily retire to a life of hoarse luxury.

Which brings us to willingness to pay. Data on the effects of passionate singing on voice life are pretty scanty. My own guess is that one might reduce their good singing career by 30-50%. Would people be willing to pay a 50-100% premium to see more passionate voices? [The actual mark-up could be quite a bit lower, since only a small portion of opera ticket price goes to pay the star singer.] Would the tradeoff become more or less attractive if people thought of it this way-- as bribing the star to give up some of his singing life? Self-destruction and art have a long and complicated relationship.

Ever-vigilant reader Benjamin Glatstein passes along this quote:

"Economics is a closed system; internally it is perfectly logical, operating according to a consistent set of principles. Unfortunately, the same could be said of psychosis."

(Jones and Wilson-- An Incomplete Education)

Heidi Bond, on the unpredictability of women:

I've heard this before. "Gee, you women are so inconsistent. Some of you want one thing and others want another. How are us men supposed to know what you want?"

This baffles me too. Presumably, anyone who is confused by the inconsistency of, say, a group of women, isn't dating all of them. Probably you are dating, one, two, at most (I hope) twenty of them at a time?

George at Pathetic Earthlings was apparently happy to stumble across the posts here on Game Theory. Anyway, he's examined my writings on the St. Petersburg Paradox and has a proposal to crack it. [As I may have never mentioned, my own solution to the paradox involves a combination of maximum payoff theory and diminishing marginal returns to wealth].

George writes:

But I don’t think you need to get that complicated. I think the answer is that one should be willing to pay any amount of money to play this game – provided that you get to play it an infinite number of times (and pay the same amount for each game).

Paul Samuelson... reports that he once offered a colleague a bet in which he could flip a coin and either gain $200 or lose $100. The colleague declined the bet, but annoucnced his willingness to accept 100 such bets together. Samuelson showed that this pair of choices inconsistent with expected utility theory, which implies that if (for some range of wealth levels) a person turns down a particular gamble, then the person should also turn down an offer to play many of those gambles.
When Samuelson showed that his colleague's pair of choices was not consistent with expected utility theory, Samuelson thought that the mistake his colleague made was in accepting the aggregated bet, not in turning down the indivvidual bet. This judgement is one we cannot share. The aggregated gamble of 100 50-50 lose $100/gain $200 bets has an expected return of $5,000, with only a 1/2,300 chance of losing any money and merely a 1/62,000 chance of losing more than $1,000. A good lawyer could have you declared legally insane for turning down this gamble.

Give us an expected utility maximizer who buys small-scale insurance such as internal wiring protection . . . and we'll give you a money pump you can hang your hat on. In this case, the Phone Company representative who has just sold a devout expected utility maximizer the wiring protection would go on: "While I have you on the phone, The Phone Company is willing to insure you against all of life's $55 risks. Do you realize, sir, that as we've been talking, the value of your stock market portfolio has swung wildly up and down by more than $55? We'll protect you! Give us $55,000 and we'll insure you against the possibility of a $50,000 loss." [The math for this is elsewhere in the article-- Will.] A true expected utility maximizer who has just bought the wiring protection would jump at the offer. By contrast, myopic loss-averters would call the Better Business Bureau and report a scam.

Lileks, railing against Patrick Stewart:

The 63-year-old British actor says manned missions are too expensive. "It would take up so many resources, which I personally feel should be directed at our own planet," he said.

Making movies takes up many resources which could be directed at our own planet. For that matter, millions of pounds are spent in England annually for theater productions – I propose a ten-year moratorium on all stage shows, with the money distributed directly to our own planet. And after we have gotten things right on this planet we can get back to such frivolous luxuries as theater. What’s that, you say – theater employs many people? Theater inspires imaginations, adds to our store of knowledge, helps us define what it means to be human?

I won't try to provide a complete list of all of the people who have argued in the past couple of days that anonymous blogging is bad. But Yglesias speaks the truth:

The name "Atrios" works like any other name and refers to the person who is the source of the writings done under the byline "Atrios" in much the way that "Andrew Sullivan" refers to the person who writes articles on blog posts under the byline "Andrew Sullivan." You can take any theory of reference that you'd like and the results all come out the same for "Atrios" and "Sullivan" the fact that "Atrios" isn't really the name of the guy who writes Eschaton doesn't make a difference.

We're not animist tribespeople here who thinks his real name has magic powers -- it's just a label, and one label's as good as another.

From Southern Fried Illusions:

Much academic and journalistic energy has been expended attempting to prove that Republicans became competitive in the South not because of positive change there but because of a negative change in the GOP -- pandering to racists. But Gerard Alexander of the University of Virginia notes that Eisenhower, like Richard Nixon in 1960, polled badly among whites in the Deep South. Eisenhower ran strongest in the "peripheral South," the least-polarized part.

Beginning in the 1950s, millions of Midwesterners and Northeasterners moved to the South. But, Alexander says, instead of voting Democratic, they voted Republican "at higher rates than native whites." Even today, "identification with the GOP is stronger among the South's younger rather than older white voters." Republican strength has been highest among persons young, suburban, middle class, educated, non-Southern in origin and concentrated in the least "Southern" high-growth areas.

Apologies for being unclear:

"Amanda interprets Dershowitz’s description of the punishment as if the intent was torture, but that is not the case."

No, the punishment -- explode the stomach by a combination of barley and water -- has a different purpose than torture. The punishment aims at death. To the person dying in that manner, though, it likely feels like torture.

Torture, in the situations in Romano-Canonical with which I was concerned, aims at creating a certain amount of pain; the pain is used to extract confessions and evidence about a crime. The torture comes early in those criminal proceedings. Death comes after conviction, when it comes.

But that said, the punishment and torture are both acts which cause physical suffering, which is the level on which I do think they are similiar.

Summary of the discussion:

1. Amanda
2. Will
3. Amanda
4. DFMoore
5. Micha
6. this post

Of the University of Chicago Press's February Features, I've only read the Walsh book (recommended), but they all sound interesting.

Really, we should talk about politics. And we do, openly, as part of how we define ourselves, in conversations that demonstrate again and again that man is a political animal. Katherine Cramer Walsh's Taking about Politics: Informal Groups and Social Identity in American Life takes a close look at the groups in which we hold these conversations. One is a breakfast group in a diner. If you'd like to talk about politics over coffee, come to Sunday's Nathan Hale meeting. If you're lazy, here's an op-ed from her.

From Ch. 4 "Forbidden Neighbors" of Andrew Wiese's Places of Their Own: African-American Suburbanization in the Twentieth Century

The example of baseball legend Jackie Robinson illustrates the barriers facing African Americans in the suburban real estate market. When Jackie and Rachel Robinson began searching for a home near New York in 1956, they found themselves entirely shut out. Robinson, who led the Brooklyn Dodgers to the world championship that year and whose reputation for personal integrity was well known, was unable to buy a satisfactory home in the suburbs of the city where he was most celebrated. Eventually, the Robinsons found a house across the state line in Stamford, Connecticut, "due to the strong efforts" of several white families there. However, their travail reveals the difficulty that faced less-celebrated families. "We were put through the usual bag of tricks right in this state," Robinson said.

And in the obligatory sex-blogging:

We will soon publish The Sexual Organization of the City a major study of the mating behaviors of the urban human. Based on the Chicago Health and Social Life Survey, the research is now being reported in many news stories. Get the background in the first chapter, "The Theory of Sex Markets," as well as a chapter on the survey design.

What is it that Jacob Levy said once -- American university presses would be out of the red if each academic just bought 30 university press books a year? Get busy.

Coming at the end of an article detailing an elaborate (and nearly successful) plan to escape from Sing-Sing Prison is the following quote from the attorney of one of the would-be escapees:

"Mr. Zimmerman would not seek to escape from prison. That is why he has lawyers."

- CMOS 5.59:
"Usually, a relative pronoun's antecedent is a noun or pronoun in the main clause on which the relative clause depends. For clarity, it should immediately precede the pronound {the diadem that I told you about is in this gallery}. The antecedent may also be a noun phrase or a cluase, but this result can sometimes be ambiguous: in the bedroom of the villa, which was painted pink, does the which refer to the bedroom or to the villa?"

UPDATE: No, despite the quote from the CMOS, I don't think there's a grammatical ambiguity here, even though it's a format that often leads itself to confusion (just which word is the antecedent?).

The potential ambiguity lies in the definitions of "escape": "1. a. intr. To gain one's liberty by flight; to get free from detention or control, or from an oppressive or irksome condition." (OED).

On one level, the attorney is saying:
"Mr. Zimmerman would not seek to (gain his liberty by flight) from prison."
It would not make sense for him to mean:
"Mr. Zimmerman would not seek to (get free from detention or control) from prison." Of course he wants out of Sing-Sing.

Now the reader comes to the initial "That" and must take the first sentence as the antecedent. Two choices again:
"(To get free from detention or control) is why he has lawyers."
or
"(To gain his liberty by flight) is why he has lawyers." [perhaps one of the three
girlfriends has a JD, or he applied the same charm to a lawyer as he did to woo one of the guards?]

There's a certain sense in which the two sentences only work together because "escape" has two meanings. Therein lies the ambiguity that amuses me. It's not the one the construction leads you to expect.

Today Miss Manners considers the rules that bar sex, religion, and politics from polite company. [Of course, the makers of these rules have never been present at my family's dinner table to see how far an argument over literature (or the etymology of "fast-forward") can go.]

Anyway, I doubt Miss Manners reads blogs, but if she did I wonder whether she'd consider them an interesting little academic community, or a mess. (I suppose it might depend on which blogs she read).

Who knows what lies in the hearts of women? Sara Butler knows.
Tina Hunter of Towson says of her love life:

"I don't have to answer to anyone. I come home, have some wine, read my mail, go to the gym. It sounds really selfish, but I kind of do what I want to on my own time. Girl, I've dated some really nice men, but no one I want to spend the rest of my life with."

Here's what it really is: They don't know how to get along with other people. They don't know how to compromise; they are too selfish. They see relationships as just another tool for their own self-fulfillment and self-actualization. They move from one relationship to another like they move from Atkins to the South Palm Beach diet; as soon as one stops working for you, get rid of it and try another.

What the hell is it with you people? Chaps sometimes wanted to marry me, and I don’t know a worse bargain. Available sex against not being allowed to fart in bed.

The Curmudgeonly Clerk writes:

I think that Bainbridge's post suggests that libertarianism has its limits—even among its supposed adherents. I suspect that few, if any, persons are true libertarians in moral matters. The libertarian no-harm principle simply fails to account for intuitional moral misgivings that each of us possess and that serve as the foundational assumptions of our respective worldviews. Libertarians frequently attempt to sidestep such when-push-comes-to-shove moments by denying that an activity "x" is, in fact, harmless. But, ultimately, we are all legislating our morality. Some people are just more honest about it than others.

Will, below, writes:

Most die-hard opponents of the death penalty are willing to allow life imprisonment with no possibility of parole. That is, are unwilling to lock somebody in jail for 5-15 years and then eventually execute them, but perfectly willing to lock them in jail until they die.

I don't think that holding someone in a place until he dies of his own accord is "passively killing" that person, unless the captor hastens the prisoner's death. The barley and water discussed below did seem to bring death considerably more immediately than nature would have ordered. Yes, prisons are dangerous places. They also come with three square meals a day and a hospital unit. It's not great, and you could get better care on the outside, but the point of life imprisonment isn't to kill the prisoner. It's to hold him until that day comes. And if you think that it's worse to live in prison for 65 years until death of extreme old age than it is to be executed and be done with it, that's another question.

I suppose we could avoid passively killing prisoners with long sentences (25 years, or 50, depending on the prisoner's age and life expectancy) if we had some way of knowing when they'd die. If we released them with a year remaining, then the prisons would have no role in their deaths. But is Will suggesting that all deaths that occur naturally during long sentences are passive killings, or just some of them (lock him until he dies)?

I don't think our life sentences show a confused understanding of active and passive killings. For the purposes of execution, I also don't think that we today would tend to draw the line where the Israelites of old did, with a self-administered early death due to natural causes. The connection between "court gives a ruling that will end in accused's death" and "accused dies" is too direct for us to focus on the precise means of excecution (stories about malfunctioning electrical chairs aside). I think we do retain a similiar line with deaths in hospitals. It's not acceptable to give a patient a fatal dose of morphine; it is acceptable to remove the patient from feeding and breathing tubes.

In an update at the end of her post below, Amanda notes Micha Ghertner's comment that barley-feeding was (wrongly, perhaps) considered "passive" killing rather than the various more "active" alternatives that jump to our minds. He adds:

Perhaps this distinction between active and passive killing is not quite as distinct under modern theories of justice.

Is Will saying that the die-hard opponents of the death penalty are just in favor of passively killing and those who support it are actively killing the convicted? Then wouldn't those be morally indistinguishable and the anti-death penalty person loses his high horse, right?

But a lot of die-hard opponents of the death penalty also oppose it on grounds of cost (as the average death penalty conviction ends up costing so much more than the average life imprisonment) as well as moral grounds. So I don't think that this smears their argument too much.

From Alan M. Dershowitz’s Why Terrorism Works: Understanding the Threat, Responding to the Challenge:

The ancient Jewish system of jurisprudence came up with yet another solution to the conundrum of convicting the guilty and preventing harms to the community in the face of difficult evidentiary barriers. Jewish law required two witnesses and a specific advance warning before a guilty person could be convicted. Because confessions were disfavored, torture was not an available option. Instead, the defendant whose guilt was obvious from the circumstantial evidence was formally acquitted, but then he was taken to a secure location and fed a concoction of barley and water until his stomach burst and he died.[emphasis added] Moreover, Jewish law permitted more flexible forms of self-help against those who were believed to endanger the community.[fn. 38] p. 157

[UPDATE BELOW]

Dershowitz notes that Romano-canonical law also required two eye witnesses for conviction, and that the most compelling of circumstantial evidence was not. In these courts, one’s own confession was acceptable proof, so torture was an available option if: “there was so-called half-proof against the suspect. That meant either (1) one eyewitness, or (2) circumstantial evidence of sufficient gravity.” What was confessed in torture had to be repeated outside of torture (if he didn’t re-confess, torture him again and repeat), and facts recounted had to be verified (is the bloody candlestick in the behind the azaleas in the conservatory?) (John Langbein, Torture and the Law of Proof, p. 4-5, p. 15). Torture was designed not to generally be fatal — that was for the punishment. Roughly just as lovely as the Jewish system, but with a different set of constraints on what could not be done.

So, what set of constraints led to a formal acquittal followed by actions explicitly designed to kill the acquitted person? The guy isn’t being fed barley because it’s nutritional -- the dietary fiber might lower his cholesterol level. But the death by overeating is an interesting punishment. Hands-off, no firing squad, no hangman, no one to operate the guillotine. No one has to be the guy who actually kills the defendant who’s not even been found guilty. Solves one problem (would the lottery of Shirley Jackson’s eponymous short story have persisted so long if there were a second slip of paper drawn to mark the executioner of the person who drew the first black mark? In The Lottery as written, the unfortunate person died by community stoning). Doesn’t avoid what I consider to be a second problem (neither does the Braveheart death): cruel, under the first part of the OED’s definition (“disposed to inflict suffering”).

Footnote 38 - the only footnote to this paragraph - explains that “Din Rodef, or Law of the Pursuer, refers to the halachic principle that one may kill a person who is threatening someone else’s life. This rule was set forth in the twelfth century by Moses Maimonides, a great Talmudic scholar.” In much of this book, I wish Dershowitz used more footnotes.

UPDATE: Micha Ghertner helpfully emails some clarifications: "If I recall correctly, the reason why the Rabbinic courts used the  barley and water punishment was not because they wanted to inflict suffering (although this may have been secondary concern insofar as a strong deterrent was desirable), but because they were divinely prohibited from _actively_ executing a criminal unless they could establish the extremely high burden of proof. Feeding someone raw barley and water was considered a _passive_ form of killing, and thus permitted, because it was only through the reaction of the two ingredients, and the voluntary nature of the feeding (the prisoner was not force-fed, but actively chose to eat the barley and water because nothing else was available), that the desired result would take place. Perhaps this distinction between active and passive killing is not quite as distinct under modern theories of justice."

The Chicago Tribune has a little more on the Bob Knight story mentioned below:

One witness to Monday's incident told the Lubbock Avalanche-Journal that Knight raised his voice to Smith after the chancellor approached him at a salad bar to compliment the coach on his recent good behavior. The witness told the paper that Knight flew into a rage, saying there had been nothing wrong with his demeanor this season.

Waddling Thunder notes here that British Law Schools may be adopting an admissions test-- the LNAT. The Guardian says the test is "is based on the American Scholastic Aptitude Test for law students, or LSat" (emphasis mine). but I've got to say that looking at the practice test they put online, it looks a whole lot somebody just took a few old LSAT books and changed the spelling. Supposedly the LNAT will have an ethics section though. This worries me-- not because I think ethics render one unqualified to be a lawyer, but because I don't think a universal standard of ethics should govern who gets access to advanced education about the law. Is the idea that legal knowledge is itself so precious that we must keep it from the unscrupulous? Like missile technology? (Whether ethics exams should govern ability to practice a law is a separate, but still debatable, question).

Ed Cohn, Susan Ferrari, and Matt Reece (all of whom had their own quite-interesting blogs) have now begun a group blog-- Gnostical Turpitude. As the title indicates, they're all Nabokov-lovers. Oh, and they're all U of C Students. Natch.

As a Bloomington, Indiana native and long-time IU Basketball fan, I feel a sort of obligation to note this:

The Texas Tech coach got into a verbal spat with the university chancellor at a grocery store Monday, prompting a review by school officials.

``Right now, the athletic director and the president's office at the university are looking into the incident,'' Smith said. ``We'll wait to hear more in the next few days about their review.''

If you're playing the Helicopter Game below and aiming for a high score, find yourself a slower computer. I just played it for a few minutes here in the computer lab rather than at home and beat my previous score by over 200 points. (Now at 1297 . . .)

UPDATE: 1412...

UPDATE REDUX: 1862 . . .

UPDATE 3: 1979 . . .

Like Tyler Cowen, I also liked Gabriel Garcia Marquez'z autobiography, Living to Tell the Tale. Unlike Tyler Cowen, I admire almost everything else by Marquez too. Like Tyler Cowen, I don't admire Marquez's pro-Castro politics.

I finally finished my paper for History of Legal Thought, but it was a close call. I found myself repeatedly led astray by:

This damned helicopter game (1079 is my high score), courtesy of Begging to Differ. If anybody can figure out how to keep me from accessing the site, I'd be most grateful.

Reading the play Tape by Stephen Belber. It was very good, if a little disturbingly biographical. Now I learn there's a movie, too.

This really insightful paper by Cass Sunstein and Richard Thaler on "Libertarian Paternalism." (Sigh). If only Professor Thaler had let me into his class this quarter . . . (this link is via somebody, but I can't now remember who. If you think it might be you, let me know).

If you didn't catch Janet Jackson's exposed breast during the Super Bowl (perhaps you were gone to the kitchen for another beer since it was half-time, or you'd forgotten that there was something scandalous about a scanty outfit that suddenly revealed more skin), more flesh is about to be (somewhat?) widely released. Fox Searchlight Pictures is releasing The Dreamers under an NC-17 rating, the first film in 6 years to get that MPAA rating (the trailer is here). I'm of the Roger Ebert school of thought: more sex should be permitted within the R rating, and many movies would be improved with less blood and fewer interminable fight scenes in movies (LOTR. . .).

Perhaps it's a non-event. The New York Post reviewer at Sundance thought it a not particuarly good movie:

Bernardo Bertolucci's "First Tango in Paris" doesn't quite live up to the hype, except for the screen-filling closeups of sex organs and graphic masturbation scene that earned it an NC-17 rating. Fox Searchlight, which is releasing it on Feb. 6, should get plenty of mileage out of the pretty, scantily clad stars (Michael Pitt, Eva Green and Louis Garrel) as teenage hedonists playing sex games while Paris erupts in the student riots of 1968.

Opens in select cities on Friday the 6th (I don't know if Chicago is select). Even if it's a non-great movie featuring sex&nudity, at least it's not a non-great movie featuring decapitations and explosions.

UPDATE: Chicago's not sufficiently select to get it on the 6th, but it will open here next Friday, the 13th. Happy Valentine's Day. (Thanks, Jon)

This Sunday at 7:00 P.M. the Nathan Hale Society's Chicago chapter will be having its first meeting. We'll be meeting at the Cosi at 116 S. Michigan Avenue, and we'll be discussing The Department of Homeland Security. Let me know if you'd like to come along.

Far be it from me to offer a better martini post than this one by Steve at Begging to Differ. So consider this post something more of a footnote. It's a poem by Peter Meinke about drinking rituals, fathers, and enjoyable unhealthy behavior (it also owes something in its structure to a villanelle, and I do like villanelles):

Ice, by Peter Meinke

The only thing I can remember my father teaching me
is how to carry an ice tray without spilling:
Keep your eye on the front compartment he'd say you'll see

it works: not a blessed drop lost Fortunately
that's a practical lesson I've been more than willing
to follow every day of my life so I think of him fondly

as I pad back&forth making ice for our martini
ritual Mom shrilled from her pulpit Those are killing
you you know and she was dead-on right but he

didn't care nor do we an inherited suicidal tendency
like a toothpick in the blood his stoic shrug drilling
into us the appeal of containing your own catastrophe

Peter he'd smile holding out his glass remember Gethsemane
was an olive grove and I'd think of the disciples milling
about and Jesus waiting for Judas beside an olive tree

and despite my name as I fixed him his drink with its three
olives I wondered which one was me in the kitchen swilling
gin with my sick old man waiting for him to say as I picked up the tray
Keep your eye on the front compartment: You'll see

"A penny saved is not much."

Apparently a consequence of keeping tabs on the Superbowl only through the New York Times' website is that I entirely missed the excitement of Janet Jackson's right breast. (So too did George W Bush).

The FCC thinks it's a "crass, deplorable, stunt," and will investigate the matter (on behalf of the small minority of viewers that were expecting something tasteful from the Superbowl halftime show). Justin Timberlake meanwhile claims that the whole thing was merely a "wardrobe malfunction." Chris Lawrence thinks that this wasn't a "malfunction" but rather a case of human error. And Waddling Thunder thinks the streaker was far more interesting.

UPDATE: Drudge has evidence that this was no malfunction, and pictures.

Howard Bashman's own appellate law boutique is open for business. His press release fails to note whether he'll be hiring summer associates. Congratulations anyway, and here's to interesting legal jobs!

Howard Bashman lined up Judge Stephen Reinhardt for this month's twenty questions. Death's been on my mind recently, so here are some excerpts from his answer to question 10: "A reporter who covers the Ninth Circuit advises me that you have never voted to uphold a death sentence. Is the reporter correct as a factual matter? And what do you perceive to be the most significant flaws in this Nation's capital punishment system?"

. . . In almost every case of which I am aware in which an individual has been executed, he had been a victim of serious and persistent sexual abuse as a child, usually at the hands of a close relative, and in addition possessed a severely limited mental capacity. An example is Rickey Ray Rector, who was missing half his brain at the time of his trial. Rector put aside his dinner on the evening of his execution so that he could enjoy it later; earlier that afternoon he watched television and saw Governor William Jefferson Clinton, who had rushed back to Arkansas on the eve of the New Hampshire primary to be present in the state capital to avoid any hitches in the execution (and, some believe, to get his picture in the next day's national press as a tough on crime, law and order kind of a guy). On seeing Clinton's familiar face, Rector commented enthusiastically, "I like that man. I voted for him." Finally, as if all of this were not enough, many capital defendants receive wholly inadequate defenses, resulting in death sentences for those whose offenses warrant only life imprisonment, and dramatically increasing the risk that the state will kill innocent defendants. . . .

When you have reviewed death sentences for over twenty years, you begin to see how irrational the line between state-ordered life and death is in our criminal justice system. . . . If the Constitution does not tolerate inequalities in the standards used to recount ballots in a presidential election, it certainly should not tolerate disparities in the administration of the capital system that are far more troubling and consequential. It was a recognition of these truths that led Justice Blackmun to shun forever "tinker[ing] with the machinery of death."

Judge Reinhardt's full answer is below:

The reporter is correct only if one does not count the cases in which I have declined to call death penalty cases en banc, and have allowed executions to proceed without casting a vote in opposition.

It is true that I have not, since becoming a member of the Ninth Circuit, voted affirmatively to uphold a death penalty. But that is not in my view of particular significance. My review of the record indicates that in over twenty-three years on the bench I have participated in only twelve three-judge panels that decided to affirm or to reverse an individual's death sentence. That rate amounts to just slightly more than one case every two years. In the vast majority of those cases, nine out of twelve, I voted with the majority to overturn the death sentence. In one of the three in which I dissented -- a case involving clear racial bias against a black defendant -- the en banc court overwhelmingly rejected the majority's decision in an opinion written by the author of the reversed opinion, a Reagan appointee, who had experienced a well-deserved change of heart between the time he wrote the original opinion and the time he decided, correctly, that the death sentence imposed in the case was unconstitutional. See Coleman v. Risley, 839 F.2d 434 (9th Cir. 1988), rev'd en banc sub nom. Coleman v. McCormick, 874 F.2d 1280 (9th Cir. 1989). Thus, in only two cases in twenty-three years did I disagree with a court majority on the merits of whether a particular death penalty sentence comported with the requirements of the Constitution. In none of the cases in which I voted to reverse a death sentence did either the en banc court or the Supreme Court subsequently overturn the panel's decision or hold that the death sentence at issue was constitutional. In my view, the constitutional violations in each of the cases in which I voted to reverse the death penalty were egregious. Each was dictated by the controlling law, and I remain firmly convinced that each was correct by any standard.

In almost all of the capital cases that come before us, there is no dispute that the state court committed some type of constitutional error. The question we are most frequently called upon to resolve is whether the person should be executed notwithstanding the errors committed below. In the two instances in which I have differed with a majority of my colleagues on the merits in a capital case, it has been over whether certain errors were substantial enough to warrant reversal. I do believe that "death is different" -- a belief repeatedly mocked by some conservatives -- not only because in our system taking the defendant's life is the "ultimate penalty," but also because once the penalty has been imposed, there is no way of rectifying a wrong decision. Perhaps fortunately, I have not yet been compelled to cast a vote in a case in which I believed that a proper application of the controlling law would require me to affirm a death penalty. If I were to confront such a case, I would have no choice but to so vote.

With respect to the flaws in our current system, a fundamental problem is the impossibility of arriving at objective standards for separating those society chooses to execute from those it decides to punish by lifetime incarceration. A regrettably large number of individuals commit crimes that make them eligible for death sentences under the various state laws. Yet few of them ever receive the ultimate penalty, and those who do are not in any objective sense more deserving of execution than those who do not. A multitude of subjective decisions are made along the way, by prosecutors, defense lawyers, judges and jurors. Standards are applied inconsistently and unequally from case-to-case. Frequently, geography determines whether a capital defendant lives or dies. Two crimes identical in every respect except the counties in which they were committed will result in a death sentence in one case and a sentence of life-without-parole in another.

The result of all these disparities and arbitrary inequalities is that those who are ultimately designated for execution are frequently society's most vulnerable rather than its most culpable. Poverty, race, histories of family troubles, sexual abuse, and mental disabilities all end up playing unacceptably large roles in determining who lives or dies. In almost every case of which I am aware in which an individual has been executed, he had been a victim of serious and persistent sexual abuse as a child, usually at the hands of a close relative, and in addition possessed a severely limited mental capacity. An example is Rickey Ray Rector, who was missing half his brain at the time of his trial. Rector put aside his dinner on the evening of his execution so that he could enjoy it later; earlier that afternoon he watched television and saw Governor William Jefferson Clinton, who had rushed back to Arkansas on the eve of the New Hampshire primary to be present in the state capital to avoid any hitches in the execution (and, some believe, to get his picture in the next day's national press as a tough on crime, law and order kind of a guy). On seeing Clinton's familiar face, Rector commented enthusiastically, "I like that man. I voted for him." Finally, as if all of this were not enough, many capital defendants receive wholly inadequate defenses, resulting in death sentences for those whose offenses warrant only life imprisonment, and dramatically increasing the risk that the state will kill innocent defendants. In short, choosing those to be executed is not a science. It is an extremely subjective process, and thus an arbitrary one; the decision is all too often determined by the biases and prejudices of the decision-maker, and is, in the end, one that may be beyond the capacity of ordinary mortals to make.

When you have reviewed death sentences for over twenty years, you begin to see how irrational the line between state-ordered life and death is in our criminal justice system. Human life is too precious to have its continued existence depend on fortuities such as the geographical location of the crime, the individual proclivities of prosecutors, jurists, and other decision-makers, and the luck of the draw in the assignment of judges and of counsel who may or may not be sufficiently dedicated and experienced to do one of the most difficult jobs in the legal profession at considerable personal sacrifice in terms of time and money. If the Constitution does not tolerate inequalities in the standards used to recount ballots in a presidential election, it certainly should not tolerate disparities in the administration of the capital system that are far more troubling and consequential. It was a recognition of these truths that led Justice Blackmun to shun forever "tinker[ing] with the machinery of death."

Just a reminder-- if you search for something (say, nude pictures of one of my co-bloggers) and then click through to one of our blog pages, we'll learn the terms of your search. And occasionally, that's kinda creepy.

Incidentally, some (definitely non-nude) pictures of us should be appearing around here soon.

Well, I only developed my enthusiasm for the Patriots about two hours ago, when my econ professor forwarded me this article. Still, I was happy to see them win.

Jeffrey Rosen has an article that begins by discussing the Scalia-Cheney duck hunt but eventually wanders off to deliver this discussion of Truman's visit to Justice Black's party (after Black ruled against Truman's attempt to seize the steel mills): "Although initially wary, Truman eventually turned to Black and exclaimed, "Hugo, I don't much care for your law, but, by golly, this bourbon is good!'"

There's an article on the lamentably rising acceptance of lip-synching in rock concerts. Myself, I don't think it's worth $100 to watch somebody pretend to sing, but apparently people disagree. I wouldn't have thought Beyonce was such a good dancer that it was worth watching her prowl about the stage unless we got the benefit of a singing voice that could never be reproduced.

Ezra Pound finally has a Library of America volume. I don't think I even knew that he didn't have one already.

Bill Gates supports the email stamp. I, of course, have previously supported it here. And here. And here. But I'm no Bill Gates.

Beldar jumps into the school-uniform fray (our story thus far: Steve Dillard; Me; Steve again; Me again; Amanda; Beldar).

Beldar's argument in favor of uniforms is entirely different-- the idea is that teenage fashion is a sort of unhelpfully competitive behavior and uniforms stop kids from competing. This is an interesting justification, and I don't really know enough to criticize it well. If the kids and parents at the school are happy to be able to be channelling their efforts toward something else, well good for them.

If the measure is supported by the kids with terrible fashion sense and few unusual opinions but opposed by those who want to wear political t-shirts, black armbands, or particularly attractive clothing, I'm less comfortable with it.

The other thing to keep careful track of is that kids are perfectly capable of competing in terms of fashion and attractiveness even within the bounds of a dress code (and often do). Many dress codes allow some kids to buy more expensive things than others-- jewelry usually isn't entirely banned, nor are hair styles, or make-up, and so on. And maybe my school was unusual in this respect (though I doubt it), but the kids who obsessed over physical appearance, attempted to sabotage one another's popularity, and so on were perfectly content to stick to weight and complexion-- two things that most middle- and high- schools haven't yet figured out how to regulate.

So if the kids at the school are generally happy with their dress code, this Libertarian will grudgingly be quiet about it, though I still don't much like it myself. There's a big difference between kids themselves wanting to avoid the pressures of rent-seeking competition and parents deciding that vulgar t-shirts, bare midriffs, and spaghetti straps are a threat to law and order among the young ones.

One last thing I wanted to comment on-- Beldar mentions the movie Thirteen:

As someone who was scared to death by the promos for the movie Thirteen, I'm frankly glad my daughter's middle school requires uniforms. Surely even a libertarian can grant some grace to a dad who doesn't want to see his daughters (or his sons) pressed into premature sexuality by fashion-driven peer pressure!

This leaves me wondering, where did Will Baude go to high school? Surreptitious games of chess, basic optics. I still remember the day my school's assistant football coach, who was clearly only moonlighting as my Goverment teacher, proclaimed his intense interest in the Worldwide Wrestling Federation.

Wading into Will and Steve ("Feddie")'s debate over school uniforms, here is the latest as both of them support their arguments with points the other finds unpersuasive:

The bottom line is that we, as taxpayers, pay a lot of money for the public school system in the United States, and we're not getting any bang for our buck. Instead of producing intelligent, well mannered, critically thinking citizens, with some minimal amount of respect for the Judeo-Christian principles upon which this country was founded, the public school systems (more often than not) spit out the type of nimrod who will go to work for PETA, vandalize a ski resort for some fringe environmentalist group, become a professional liberal activist, or run around spouting off whatever Dan Rather says on the nightly news or some nonsense espoused by his transgender professor of deviant studies at the local junior college (this is obviously not an exhaustive list). It is time to set things straight, and that ain't gonna happen in an environment where students are more concerned with protesting than say reading and writing. [naturally, this is Steve and not Will]

I agree that schools don't really need to be in the habit of pushing social interaction and fostering the time-honored skill of rules breaking and bending --- it would be like the government supporting the consumption of foods and beverages containing corn syrup -- for there's already a sufficient amount of those important lessons without anyone bothering to encourage it.

But Steve and I have different definitions of hell. I can't see why becoming a professional liberal activist is any better or worse that becoming a professional conservative activist, or why is spouting off Dan Rather isn't ok while spouting off Rush Limbaugh or whomever might be ok. And while some kids might graduate high school and start vandalizing ski resorts for the fringe enviro-terrorists, a greater number graduate (or don't graduate) and then vandalize businesses, perhaps seeing it as a quick way to grab some cash or show some anger.

And as for those professors of deviant studies, well, I ran a search for 'deviant' on the website of the City Colleges of Chicago, and all I came up with was the following course description: PUBLIC SERVICE 135 Problems in Human Behavior: "Study of normal and deviant behavior, collective behavior and narcotics offenses. Study of interpersonal relations from the perspective of working and serving the public from various background and cultures". That doesn't seem to be what he had in mind. I'd love it if someone could show me where I can find the webpage of the transgender prof of deviant studies at a community college.

Look, I think that the school system should focus on producing "intelligent, well mannered, critically thinking citizens," but I don't see that uniforms are crucial to it or that Steve's list of nimrods is really anything more than a list of the kinds of people he tends to disagree with.

I've fortunately not had any experience with uniforms -- my high school was one of two in the school system to opt-out of new requirement that public school students must wear uniforms. Why? Everyone was already passing the graduation exit exam, about 95% were going on to college, and fights involving physical violence occured about once a year. Why? Discipline problems or a GPA that dropped below 2.5 weighted would get you kicked out. No one could create a plausible argument for how uniforms -- bandaids that don't work -- would improve the school (it would get a lot of students mad), so none were imposed. My little sister had to wear uniforms in elementary and middle school in the same system. Her schools weren't as good as they were when I attended them, wearing whatever I pleased. She's now in a higher quality, better-behaved high school (in a diifferent state) that lacks uniforms. Correllation, causation, yeah, I know, but I didn't see the uniforms improving anything.

Oh and Steve? Most of the students at my un-uniformed high school were fairly liberal. Something in how we were raised. Had the uniform mandate passed, I'm sure it would have produced many anarcho-libertarians. Pick your poison carefully. But if you want to pass laws encouraging politeness, I won't fight you.

[Unlike Scipio, if I ever have kids, I'm not going to homeschool them. I'm sure my kids would hate me for it. I would hate me for it.]

. . . Historical experience suggests that policy makers are dense, or that the assumptions of the conventional argument are wrong. Free trade has hardly been the norm. Stupidity is not a very interesting analytic category. . . .

The author goes on to explain that the people whom he was considering above weren't necessarily obtuse, but that they simply lacked power in relation to other groups (states as actors); while the result is not in the small people's interests, it didn't end that way because the people were being foolish.

Now wait a minute. Granted that the policy makers may be impotent before the state as actor (oh come now, are states really actors any more than legislatives have intents?), why is stupidity not an interesting analytic category? Intelligent capitalists are not particularly interesting -- they calculate correctly what will maximize their interests, and then they go out and do it, or something like that. Stupid capitalists -- that's where the story lies. [The term and the following example were cribbed from class. I'm not talking about the merits of capitalism as an economic system, but about particular people who claim to be capitalists and are inept at it.]

It is sometime not too far past Flood v. Kuhn (1972), and Peter Seitz is the only arbitrator the baseball players and baseball owners have agreed to use in the grievence dispute. He gets the players to agree to some deal in which they all get free agency after six years of playing. Seitz takes the deal to the owners, who are overjoyed and gleefully sign on. Suddenly the few players who do have enough experience earn very large salaries; the next year's crop of six year veterans command the same high salaries.

Why did the cheapskate baseball owners think this deal was in their own best interest? Stupid capitalists. And you want to tell me that this isn't a fascinating topic to analyze? It's a category that shares some overlaps with risk, for worrying and reacting irrationally inconsistently is a species of stupidity. And it's also like accepting the bet when some guy says he can make the Jack of Spades jump out of the deck and squirt cider in your ear. When you can't come up with a plausible reason for why someone acted the way he did (insanity would be a plausible reason, but it doesn't fit here), that's when I'll wake up to the arguments again.

[The opening quote may be found in Stephen D. Krasner, "State Power and the Structure of International Trade," 28 World Politics 3 (April 1976).]