The Story we Know, by Martha Collins:

The way to begin is always the same. Hello,
Hello. Your hand, your name. So glad, Just fine,
and Good-bye at the end. That's every story we know,

and why pretend? But lunch tomorrow? No?
Yes? An omelette, salad, chilled white wine?
The way to begin is simple, sane, Hello,

and then it's Sunday, coffee, the Times, a slow
day by the fire, dinner at eight or nine
and Good-bye. In the end, this is a story we know

so well we don't turn the page, or look below
the picture, or follow the words to the next line:
The way to begin is always the same Hello.

But one night, through the latticed window, snow
begins to whiten the air, and the tall white pine.
Good-bye is the end of every story we know

that night, and when we close the curtains, oh,
we hold each other against that cold white sign
of the way we all begin and end. Hello,
Good-bye is the only story. We know, we know.

Booker T. Noe, Jim Beam's great-great-great-grandson and a master distiller, died yesterday. The bourbon world mourns the passing of a great man. I drank a glass of Booker's in his honor with my father-- if you have the chance, do the same. Note that Booker's whiskey is bottled at "barrel-proof" (that is, it isn't diluted, so it's around 130 proof), so it's best taken with a bit of ice. Sip it slowly, and note how it changes from potent poison to ethereal medicine over the course of the glass.

Andersonblog and The New York Times have more.

This is from my blog but I think a worthy Crescat Sententia post.

Maybe you're playing poker and not betting. For instance, you might not want to bet. Or you might be playing poker for "other stakes." And you may have noticed that poker--without betting--is horribly boring (this, of course, depends on what "other stakes" you're playing for). Thus, I present a non-betting poker game with the ultimately interesting addition--a marketplace!

In Posner Poker (named after everyone's favorite Seventh Circuit judge), you get 10 cards. You then can bargain with your opponent, trading various cards for cards (for instance, a king for a queen, if that's what you both want, or an ace of spades for three unknown mystery cards. Any trade of cards is valid). The act of trading gives you information both about what's in your opponent's hand and what you could possibly draw from the deck. You can also trade in cards from the deck at the rate of 2 cards from your hand for one unknown card from the deck. The game finishes when everyone decides their hand is ready, or when everyone is glowering at one another, refusing to trade.

(A variant, Epstein Poker, allows you to trade with your opponent not only cards for cards but other household items--such as pots, pans, spatulas, and kidneys--for cards.)

Speaking of Indiana, I'm now heading home for the weekend, so my own posting will be unpredictable. Some of my capable co-bloggers (both new and old) will have things to say though, I'm sure.

Given that my post two posts both linked to Cowen's blog Marginal Revolution, I thought I'd complete the hat-trick and direct you to Dan Drezner's paeon to Tyler Cowen.

And, of course, I'll throw in some self-promotion and note that you can read Tyler Cowen's 20 Questions Interview here.

I think we'll be posting more of these in the near future. Stay tuned, as they say.

Earlier, guest-blogger Ben Glatstein discussed the rationale behind the Talmudic prohibition against "stealing one's mind." The idea is to cure the classic free-rider dilemma where you go to a high-price high-service store, get an idea of what you want, and then go buy it at a low-cost outlet.

This is, for example, how I bought my winter coat. The gentleman at Nordstrom's was very helpful about what kind of coat I should get, but the folks at Filene's Basement were very helpful about what kind of price to provide it at.

Anyway, because of this problem I've always been surprised that Borders and Barnes and Noble were so willing to let people just come in, nose around, sit reading a book in a comfy chair for a while, then leave. Indeed, I had assumed that the comfy-chair revolution was a result of this free-riding.

Tyler Cowen suggests that if book prices are low enough, though, Barnes and Noble doesn't have to worry about people like me going over to Amazon or a used bookstore to buy what Barnes and Noble has been pushing. For those of us who intend to continue our free-riding, it's always good news to learn that everybody else doesn't.

Don't miss Josh Chafetz's admirably thorough nose-counting post, where he determines that the Federal Marriage Amendment is unlikely to clear the Senate. Hurrah.

Also, allow me to express my personal relief that neither of Indiana's Senators (one D, one R) is currently in favor of the Amendment. In light of Alex Tabarrok's sound criticism of Hoosier anti-outsourcing policy, it's nice to have some good political news from the home front.

Should also note, there's a concurrence to Mr. Tabarrok here by Phil Tsipman. He's a fellow Koch alum who wants me to link his blog.

To all interested: The Nathan Hale Society Chicago Chapter will have its next meeting a week from Sunday, on March 7, at 7:00 P.M. Again, we will be meeting at the Cosi's on Michigan Avenue. Details of our first meeting are here.

With the Academy Awards approaching, I just thought I'd remind everybody about Amy's predictions in this area. The New York Times rounds up the current thought here. Charlize Theron is supposedly unstoppable; Johnny Depp is a dark horse candidate for best actor. The Theron-Depp Oscars would be profoundly weird.

In a passing attack on non-abstinence sex-education, Sara Butler writes:

Here's what really bothers me most about "safe sex" sex-ed: it assumes that teenages are raging animals who can't (and shouldn't and don't need to) control themselves. I takes for granted and thus allows young people to be hormone-driven beasts, rather than soon-to-be adults who have, um, reason and will, both of which could use some exercise.

Before the Curmudgeonly Clerk gets a chance to, I figure I should comment on Amanda's comments on the Hiibel case below. It's apparently not entirely clear what the relevant facts are.

My prediction: If the Supreme Court holds the search unconstitutional, the facts will be that there is no obligation to show one's papers to an officer without further suspicion. If the Supreme Court holds that the search was okay, the fact pattern will be the narrower and less favorable one.

Earlier this week I confronted Slithery D's etiquette question of whether and how to tell a lady that her pants are coming off. It turns out that Miss Manners has dealt with this question before, and a reader sends along a link to this column. Nonetheless, I stand by my answer for the circumstances Slithery D described-- etiquette does permit one to tell a lady that her slip is showing, but for various reasons I suggest Slithery D be injoined from doing so.

[note: taken down, just read Samuel Huntington's "The Hispanic Challenge" in Foreign Policy]

If I'm out walking, just walking, must I show ID if asked, must I carry ID? That's the case of Dudley Hiibel, which the Supreme Court will hear Monday, Mar. 22nd.

Nathan Hamm's experiences with showing ID on command in Uzbekistan are worth reading.

UPDATE: Accounts of the fact patterns don't match up very well.

According to the Washington Times op-ed, "he was leaning against his pickup truck on the side of the road near his ranch. The police officer did not offer any specific reason why he demanded proof of identity. Having committed no crime, Dudley Hiibel, the cowboy, refused — and was arrested." That description suggests a scenario not entirely far from Kolender v. Lawson. It's an O'Connor opinion, with Rehnquist joining White's dissent. The CA statute requiring loiterers and wanderers to provide "credible and reliable" identification was void for vagueness. [thanks to John Bogart for the cite]

According to the Solicitor General's brief (link via The Curmudgeonly Clerk), "Deputy Lee Dove received a report that a witness had seen an individual striking a female passenger inside a pickup truck. Dove drove to the location of the incident and spoke to the witness, and the witness directed him to a truck that was parked nearby. When Dove approached the truck, he observed skid marks in the gravel, suggesting that the truck had been pulled over in an aggressive manner. Petitioner was standing outside the truck and his minor daughter was seated inside. Based on petitioner's mannerisms, speech, eyes, and odor, Dove believed that petitioner was intoxicated."

Were the Washington Times fact pattern true, I'd hate to think that being next to a vehicle, or even in a vehicle, automatically suggests that you've driving the car. That at least was the theory my twin sister and I used when we'd go out driving and realize that only the passenger had remembered to bring her license: "Laura, put your wallet in my jacket pocket. We'll switch who's driving relatively soon, but if we get stopped before then, I'm you." Her photo actually looked more like me than mine looked like me (neither really looked like Laura, but what did you expect from a DL pic?). But there were also times when one of us had remembered to grab her license, and the proper person was driving. I never figured out what would happen if the police were ever in a situation of figuring out who's who (side question: how good should one's ID card be at proving identity? Some photos may suggest that I'm not Laura, but they don't prove it, and other photos are misleading).

Can a requirement to produce identification (perhaps unclear if an ID card is needed, or a name will suffice) become a requirement to carry ID? The SG's brief emphasizes that all the officer wanted was a name, to know Hiibel's identity; it avoids discussions of official forms of identification. Kolender voided the CA statute because it wasn't clear, under those words, whether you had to carry an ID or if you simply had to provide enough identifying information that you later could be found (the jogger with empty pockets). White's dissent notes that the Supreme Court didn't consider 4th or 5th Amendment rights in its majority opinion. Maybe those questions will come up now.

I don't know if the Supreme Court will reach the issue of identification cards. One of the Clerk's commentators said he saw the video of the exchange, and the officer was clearly asking for "identification" not "identity." Again, that's not the story the SG brief tells. I don't think that America will get to the situation of Uzbekistan (or of dire Ray Bradbury predictions), but I do like the feeling that I can wander around anonymously. I could answer my name and address if stopped, but I'm a forgetful person -- there's no guarantee I would remember my wallet or my phone number, and I'd really like to hope that minor level forgetfullness of that sort is just silly, never criminal.

From the very end of the NYT review of "Good Bye, Lenin!"

"Good Bye, Lenin!" is rated R (Under 17 requires accompanying parent or adult guardian). It has Communist rioting and violence and post-Communist nudity, strong language and alcohol consumption.

If you're trying to decide whether or not a term is perjorative, how much does the original meaning matter?

Take horde.

I'm not sure that it's original meaning was clear. A linguist of Turkic languages claims it refers simply to a group of 10 people in an army. Other derivations say it came from the Middle Mongol word (h)Ordu, meaning camp or encampment. Another explanation says it does derive from ordu, but that an ordu was composed of several tumen, and each tumen was a military grouping of 10,000 soldiers and their families. The OEDgoes to Australian anthropology to say that a horde is roughly five family groups. I have no idea which one is the right history of the word, but none of these histories suggest that if I knew how to use the word properly, I should avoid it because people might think of an invading Genghis Khan and burning cities. Such an image simply isn't hinted at.

But if you look at the rest of the OED's entry, you get not so nice, or not so ambivalent:

1. a. A tribe or troop of Tartar or kindred Asiatic nomads, dwelling in tents or wagons, and migrating from place to place for pasturage, or for war or plunder. b. Also applied to other nomadic tribes.

2. transf. a. A great company, esp. of the savage, uncivilized, or uncultivated; a gang, troop, crew. b. Of animals: A moving swarm or pack.
Hence horde v. intr., to form a horde; to congregate or live as in a horde.

The etymology of the word -- of any word that may be shunned -- is interesting, but in the end, I don't think it's very relevant as to whether or not it should be used in conversations where one is especially concerned with being pc. Today's meaning is more important than the context of the first uses.

Dennis Kucinich gave a speech at the law school last night. They let me write the news article in the law school paper. You can find it here. I'm trying to get more hits on the web site than the article about the new Dean of Students (who we appear to have stolen from Chicago, where, by all accounts I've read, she was beloved and wonderful and amazing and so I suppose I'm glad she's here, even though I don't know exactly what a Dean of Students does). Here's why they don't usually have me write news articles:

The audience was filled with not just students but Kucinich supporters from the broader community, wearing buttons, carrying signs, waving banners, and, perhaps in the case of one woman who coughed throughout the event, suffering from a lack of universal health care.

A while back, I promised a more substantial defense of state universities. This argument owes much to a certain professor at a certain land- and sea-grant university.

Public universities are effective tools for social stability and security.

The larger the gap in income inequalities, the more resentment will develop in the portion of the population that feels like it has been screwed. If there were ever a serious mass riot/uprising in America (ok, so there are substantial coordination problems to be jumped), the police and the military would not be able to handle the situation well at all. Granted, it might be unlikely, but massive chaos if it ever came to pass. And history does have examples of times when significant portions of the population thought the situation was hopeless without radical political change -- see interwar Germany.

This isn't a reason that comes up much in discussions of public universities. LSU's National Flagship University plan focuses on benefits through a more cheerful lens:

LSU can serve the state by providing:
- a world-class knowledge base that is transferable to educational, professional, and business enterprises;
- an incubator for the development of new products and technologies prominence in the national arena for federal projects and funding;
- nationally ranked programs that prepare students for the most competitive and prestigious graduate programs and employment opportunities;
- and a competitively educated workforce, trained for attracting high-growth industries.

But look at the list -- it's a plan for strengthening the state and attracting more and better jobs, and for keeping the people educated by K-12 and state universities in the state (so many now are leaving).

Some criticize public universities for redistributing wealth to the upper crusts of the society. Maybe. It does happen to some extent. But public universities can also strengthen the ties that middle-class, potentially wealthy young people have to their states, keeping them around to help the state develop. New Orleans was crawling last weekend with LSU baseball hats and t-shirts, and not all were worn by students or recent grads. For us, I think keeping these people in state is a relatively new idea. Louisiana is the most rooted state in the nation (and Vacherie, a bit west of New Orleans, the most rooted town). It is the educated people who are most likely to leave now, but also who need to be kept here the most if the unskilled workers are going to have any chance of a job or of a social net funded on the companies and wages of the wealthier (yes, I'm a liberal. Expand Head Start. More $ to public schools. Revitalize the charity hospitals. More job training programs. Use the money of the upper income brackets to do it.).

Nor are public universities entirely engaged in taking money from the middle-class and up parents and giving it to those people's children. It's also the place where dreams of American success stories can easily come true. What's the easiest way to become successful if you don't come from having much luck? Find a way to get into college. Work hard. Yeah, the K-12 also needs a lot of work, but it's not impossible. State universities don't have the highest of admission standards, and the sub-branches and other systems-- Southern, UL-Lafayette, Southeastern, McNeese State, U New Orleans -- are even more inclusive. It's a step up in life of the "teach a man to fish" variety.

Chris Lawrence called LSU a "'blue-blood' state university." I'm really not sure what he means by that. You don't need to be a blue-blood to attend. It has lower in-state tuition and far more free tuition than Illinois's flagship at Urbana-Champaign. Louisiana's TOPS (Tuition Opportunity Program for Students) will essentially pay your tuition at any public in-state university if you get a 2.50 weighted GPA in core high school courses, and earn the state's average ACT score of the previous year (currently a 20); do better, and you get more money. Want to go to Tulane, Centenary, or any of the other in-state privates? They'll give you the same amount of money to spend there, too. It works out to about about LSU tuition, which is $2,000 a semester.

And so why is this something that should be run through the public university system rather than by giving cash handouts to privately financed universities?

Pride and accountability.

Few would dispute the USNews & World Reports rankings that place Tulane ahead of LSU, but LSU gets more pride. Tulane is seen as somewhat peripheral to the state's future (it's not, it's actually the largest single employer in New Orleans, and its med school faculty lot is the best place to park for Mardi Gras parades, but that's irrelevant). It's not just pride of the university in itself, but pride of the state in the university. LSU is the dream to which we can all aspire, and it's a place that makes other dreams possible.

Accountability. LSU's plan to get national prominence is linked to plan of the state legislature and governor to called Louisiana 2020. It's a drive to keep the state from being a job-market deadwater and the subject of all the jokes in Arkansas (ok, so maybe that last part won't happen). But by linking this institution, the state university systems, to the bureaucracy will make it more likely that the state universities will achieve their goals (educating more students and doing it better, R&D). As always in these systems, there's a danger that the embedded institution won't be able to keep the purity of its goals once its subsumed into the larger government (see: Daniel Drezner, “Ideas, Bureaucratic Politics, and the Crafting of Foreign Policy.” Am. J. of Pol. Sci. 44 (October 2000): 733-749). Here, though, I'm not too worried. The bureaucracy and the universities want largely the same thing. State universities can be more easily controlled than private universities, and so long as you have both, I think that's a good thing. When the University of Chicago was pretty callous towards its neighborhood in the 60s, it by-and-by got away with it. Now it's decided that was a bad idea and to try to reform its ways. I'm not sure that a state university could have been so insentitive, so long. There are checks on the process, because (and I return to the beginning of my argument) social instability should be avoided.

UPDATE: Prof. Levy pointed out to me the historical errors that my optimism overlooked. U of C was able to be a poor resident of Hyde Park because it had the Daley machine on its side with zoning issues and useful eminent domain claims. The public Univ. of Illinois at Chicago was also established in its current location under Richard J. (history: the Medical Center had been there since the 19th cent, but in 1965, the Navy Pier campus moved to the same campus). The mayor wasn't after serving the people's interests in their universities; he was after separating white and black neighborhoods.

Hei Lun, at Begging to Differ writes:

One of the thousands of little things in life that really annoy me is when someone accuse another person of being a coward because the other person said something bad about them, but not "to their face". If you're so tough, why don't you say it to my face, the line usually goes. The implication is that the other person wouldn't say what he said if he risks getting a punch to the face. My thinking is, so what? It doesn't make what is said any less true just because it's not said in the presence of the subject.

Tim Sandefur explains why he thinks that USPS v Flamingo was wrongly decided (the case, handed down this week, ruled that when the Post Office entered businesses other than mail-delivery-- in this case, the selling of bags-- that it was not a "person" for purposes of the Sherman Antitrust Act).

His analysis is pretty thorough, and he's right that the court seems not to have taken the case very seriously, and to have relied on some pretty silly economics (in particular, its notion that the Post Office is different because it's only trying to "break even"). But one nagging argument againt Flamingo still bothers me-- the Post Office is subject to the Taft-Hartley labor act, which is part of its having been launched into the marketplace-- but the Reorganization act specifies this. If the drafters of the bill thought Taft-Hartley liability needed to be laid out explicitly, why not Sherman liability?

QUESTION: But of course, the Reorganization Act itself specified that they'd be subject to Taft-Hartley, did it not?
MR. KRENT: That's correct. And that's part and parcel, I think -
QUESTION: So why didn't it specify that they would be subject to the Sherman Act?
MR.

Daniel Davies calls hurray for the jury system. Out of fear that a jury would refuse to follow the law because of their sentiment about the war, charges in the case against Katherine Gun were dropped.

I'm happy about the result in this case, but as to the broader "hurray," color me cautious. After all, refusal to convict somebody because of the war can go both ways. [Imagine, for example, some particularly offensive anti-war protesters being assaulted shortly after 9/11-- would it have been possible to muster up a jury that would convict the patriotic thugs?]

Davies writes:

It establishes a precedent (not a particularly strong one in the legal sense, but one that could be taken as indicative and quite a strong one in practical terms) that there is an implicit defence of justification in charges under the Official Secrets Act. This seems to me like a very attractive position indeed; it is still against the law for spooks to leak, but in extremis, they can follow their conscience, as long as they’re prepared to believe that their cause is so obviously right (or their perception of the national interest so widespread) that they’re sure that a jury would take their side.

Follow up on Will's post below. There's a relatively recent article about him here, in the London Financial Times. Summarizes his past work, talks about sumo wrestling being fixed and abortions causing the crime rate to drop, and, perhaps most controversially, drops a quote about how Billy Beane and the Oakland A's just ain't that special:

Levitt read Michael Lewis's book Moneyball about the supposed innovators, the Oakland As, and is unimpressed. "If you look at all the stats they say are so important, the As are totally average! There's very little evidence Billy Beane [the club's general manager] is doing something right."

Thought Will might like that one, given his response to my comments on Moneyball earlier.

You are... A Peanut Butter and Jelly Sandwich!!!

You have two distinct halves that come together as one.
Both sticky and sweet, your proportions are often meddled with,
but you are nonetheless a tasty treat. Your compassionate
side appears when you selflessly shed your crusts
in the name of motherly tenderness.
Everybody loves you, but they love you even more
when your buddy, Glass "o" milk, shows up.
The key decision for you in the next five years will be,
"Should I be cut diagonally or horizontally?"
PS - Wonder Bread only. Wheat bread is for sissies.

Take the Personality Quiz, brought to you by Mr. Poon.

(For a little bit more on the evils of Wonderbread, go here.)

If you happen to be a University of Chicago student registering for Econ 200 next spring, take the section taught by Steve Levitt. I'm not quite sure why he's deigning to teach such a lowly class, but he's. . . well, amazing. (For more on which, see here).

[Editor's note: THREE UPDATES now below.] Slithery D poses an etiquette dilemma on his blog-- namely that a lady he shares a class has a tendency to dramatically display her underwear when she is sitting. As this happens on a habitual basis, his question is whether and how he can gently caution her of her (perhaps) undeliberate immodesty.

As always, our inquiry begins with Miss Manners. I can't find a spot where she's directly covered this issue, but she has covered a related issue-- what a lady should do when she sees other ladies whose tags are sticking out. Miss Manners offers (1/28/04):

The rule about such corrections -- and Miss Manners can think of worse clothing errors of which the wearers would be grateful to be informed in time to salvage their appearance -- is that they must be made in confidence and that the problem must be easily fixable on the spot. If you can manage to be really discreet, no one else need know about it -- neither the tag-wearer's escort nor your daughter.

"I often tell my friends that their nipples are showing. depending on how close i am to them, it ranges from, 'you may want to, uh,... ' to 'yo, your nipples are showing.'"

Rehnquist writes for the majority against Justices Scalia and Thomas in Locke v. Davey (holding that the states or state constitutions can exclude theology from scholaraship programs without violating the First Amendment). This just hasn't been Scalia/Thomas's week.

I've blogged earlier on Locke v. Davey-- suggesting that it might be a mistake to assume "theology" is identical to "religion"-- here. Happily, I seem to be in good company. Justice Thomas writes:

Because the parties agree that a “degree in theology”
means a degree that is “devotional in nature or designed
to induce religious faith,” Brief for Petitioners 6; Brief for
Respondent 8, I assume that this is so for purposes of
deciding this case. With this understanding, I join
JUSTICE SCALIA’s dissenting opinion. I write separately to
note that, in my view, the study of theology does not nec-
essarily implicate religious devotion or faith. The con-
tested statute denies Promise Scholarships to students
who pursue “a degree in theology.” See Wash. Admin.
Code §250–80–020(12)(g) (2003) (defining an “ ‘eligible
student,’ ” in part, as one who “[i]s not pursuing a degree
in theology”); Wash. Rev. Code Ann. §28B.10.814 (West
1997) (“No aid shall be awarded to any student who is
pursuing a degree in theology”). But the statute itself
does not define “theology.” And the usual definition of the
term “theology” is not limited to devotional studies. “The-
ology” is defined as “[t]he study of the nature of God and
religious truth” and the “rational inquiry into religious
questions.” American Heritage Dictionary 1794 (4th ed.
2000). See also Webster’s Ninth New Collegiate Diction-
ary 1223 (1991) (“the study of religious faith, practice, and
experience” and “the study of God and his relation to the
world”). These definitions include the study of theology
from a secular perspective as well as from a religious one.

Louis Menand has this interesting article on chess in The New Yorker. Ed Cohn has these interesting thoughts on the article on Gnostical Turpitude. Ed's irritated that Menand calls chess a "sport".

The misuse of the word "sport" is a pet peeve of mine; my main extracurricular activity has been quizbowl (an academic competition), and I'm always annoyed when people try to claim that it's a sport. (The people most likely to do this are the sort of people who seem most upset at their own lack of athletic prowess, and they invariably want to dumb it down and make it more audience-friendly.) In my experience, no one seriously refers to Scrabble or intercollegiate debating as a sport... Activities like these--pseudo-intellectual pursuits that aren't even vaguely athletic--just don't qualify, as far as I'm concerned, and to claim that they do will often be tantamount to an attempt to simplify them or dumb them down.

In regard to all the fear-of-child-blogging that's been going on earlier over here, my friend John Coleman links to this video. It's pretty cruel when you think about it, but also one of the most effective "use condoms" videos I've seen.

I'd hate to make enemies with my first post after being fortunate enough to get my name on the masthead (and I admit I'm overselling what I'm about to write, but the word "enemies" fit so nicely in the sentence), but I did a double-take when I read Amy's post below where she writes:

it often seems that the people least suited to parenthood are the ones who end up with children. It's those who don't realize how much work is involved in raising children who are most eager to acquire little rugrats of their own. Those who understand the true scope of the task are disproportionately the ones doing everything they can to avoid taking it on.

I'm a guy, and I don't have any children (though I hope one day I will), so maybe I'm just not qualified to have anything to say about this, but I don't believe that's true. At least I don't want to believe that's true. I want to believe lots of people are thrilled they had children and do a great job raising them, and think the rewards outweigh the costs. I understand being a parent probably isn't for everyone, and certainly respect everyone's right to make the decisions that they feel are best for them with regard to this, no argument. But to imply that people are fooled into parenthood if they don't know how much work it is seems to ignore that people can get an awful lot of reward and satisfaction out of it. I realize I sound incredibly naive to even think what I'm about to write, but even the summers I spent as a camp counselor let me feel, just a little bit, and I'm not trying to turn this into a bigger point than it is, the fulfillment that can come back to you when you feel like you're really making a difference in a child's life, that you're there for them, that you're giving of yourself. And, yeah, people who aren't parents can work with children in all sorts of ways, and get that reward without cleaning up vomit, but still: I just can't imagine Amy's proposition really reflects reality, and that a good (even stunning) percentage of parents wouldn't trade it for the world and don't regret having their kids. I almost can't fathom otherwise.

For those who follow textualism and discrimination arguments, General Dynamics Land Systems (issued today) is also worth a look. At issue was the question of whether a law that outlawed "discriminat[ion] because of an individual's age," for those over the age of 40 stopped employers from discriminating against 40-year-olds in favor of 50-year-olds. (And also, as a corollary, whether interpreting the law to forbid such discrimination was unreasonable, and therefore whether Chevron applied).

A six Justice majority held that "discriminat[ion] because of an individual's age" occurs only when there is discrimination because of an individuals old age, and that a statement to the contrary made by one of the bill's sponsors notwithstanding. They further held that this interpretation (their own) was so clearly right that the EEOC was unreasonably wrong to think otherwise, and thus owed no deference under Chevron. For those of us who are disillusioned by the use of legislative history, this case could be another case in point.

Also at stake was the Court's reliance on what it termed "social history." (On which Justice Thomas wrote the following):

Strangely, the Court does not explain why it departs from accepted methods of interpreting statutes. It does, however, clearly set forth its principal reason for adopting its particular reading of the phrase "discriminate . . . based on [an] individual’'s age"” in Part III–A of its opinion. “The point here,” the Court states, “is that we are not
asking in the abstract how the ADEA uses the word ‘age,’ but seeking the meaning of the whole phrase ‘discriminate . . . because of [an] individual’s age.’ As we have said, social history emphatically points to the sense of age discrimination as aimed against the old, and this idiomatic understanding is confirmed by legislative history."

Ante, at 14 (emphasis added). The Court does not define “social history,” although it is apparently something different from legislative history, because the Court refers to legislative history as a separate interpretive tool in the
very same sentence. Indeed, the Court has never defined “social history” in any previous opinion, probably because it has never sanctioned looking to “social history” as a method of statutory interpretation. Today, the Court takes this unprecedented step, and then places dispositive weight on the new concept.

The Atlantic Monthly article that Amy links to below also fed a recent conversation in Slate, "Am I Exploiting My Nanny?".

I'm leery of having children because of the short blurb which Slate carried for that series of articles (they changed it after a day or two; perhaps because other people had my reaction; perhaps because they like to change the blurbs). It referred to the nanny question as a women's dilemma (I wish I could remember the exact words).

No. If my hypothetical future husband and I should have children, how to care for the children is a problem that belongs equally to both of us. Granted, only by a dreadful mistake would I marry someone whom didn't agree with me on this point, but I am afraid of this still-existant cultural presumption that the children would be peculiarly my domain.

Fortunately, I've already got one sister who's been dubbed She Who Will Provide Grandchildren for Our Mother, so all's clear on that front. :-)

(Thanks to Steve at BtD for pointing out that I'm probably not 'leary' of children, esp. given that the OED doesn't know what that word means ["Origin and meaning obscure."])

Caitlin Flanagan has a very thoughtful article up on the ways in which the problems that face upper-class women have diverged from those facing working-class ones. I'll leave the substantive commentary to blogs like Diotima or Alas, but I wanted to point out this paragraph section:

am about the same age as Naomi Wolf, and we had children at about the same time, but I had neither expected nor wanted a revolution. I did not have a single dream about moving into the world of work when I was a girl. In fact, when I concluded that being a girl was in every way superior to being a boy, my two top pieces of evidence—freely offered, never challenged—consisted of the facts that I would never have to go either to Vietnam or to a job. (I confess to a brief, Howard Carter-inspired period during which I planned to become an Egyptologist, but that dream centered chiefly on a pale-blue linen sheath that I intended to wear in the desert. I was also deeply affected by the Modesty Blaise novels, but I realized that all the images they inspired—principally of having an erotically charged but entirely chaste relationship with a worshipful man while we cheated death and fought crime on an international basis—were, although startlingly intense, the stuff of fantasy.) What I dreamed about was getting married and having babies and running a household. I did, as a young woman, teach school, but I always thought of it as an engaging time killer until the babies arrived. And arrive they did, trailing the advertised clouds of glory, but also (this had not entered into any of my dreams) trailing an awful lot of shit work—shit work that grew more onerous and complicated with each passing month. Furthermore, the shit work seemed to be devolving almost entirely to me, for like Naomi, I had taken up a preordained place in the hierarchy of class and gender.

Don't get me wrong: I got a real kick out of the babies. But the cleaning was putting me in a funk—a bad kind of funk. A feminist-type, really cheesed-off kind of funk. I had expected, merely upon the simple fact of giving birth, to be magically transformed from the kind of woman who likes to spend most of the morning lying on the couch reading and drinking coffee and talking on the telephone to the kind of woman who likes to spend most of the morning tidying up and thinking about what to cook for dinner and inviting other mothers over for a nice chat. It didn't happen. Play dates—a sort of minimum-security lockdown spent in the company of other mildly depressed women and their tiresome, demanding babies—brought on a small death of the spirit, the effects of which I feared might be cumulative. I also felt resentful and sometimes even furious about almost any domestic task that presented itself: why was I supposed to endlessly wipe down the kitchen counters and lug bags of garbage out to the cans and set out the little plastic plates of steamed carrots and mashed bananas that the children touched only in order to hurl them onto the floor? Hadn't every essay I'd ever submitted in college come back with a little mash note telling me I was in some way special, a cut above, meant for something? Wasn't I designed for more important things than putting away Lego blocks and loading the dishwasher? I was! It was time. Cherchez la femme

This confirms a pet theory I've always held as to why it often seems that the people least suited to parenthood are the ones who end up with children. It's those who don't realize how much work is involved in raising children who are most eager to acquire little rugrats of their own. Those who understand the true scope of the task are disproportionately the ones doing everything they can to avoid taking it on.

UPDATE: I don't mean to say that there aren't benefits to having children that cam make all of the work involved more than worthwhile. Babysitting was my summer job all through high school, and I loved it--more than I can say for most all of the jobs I've had since then. The point is simply that people who realize the magnitude of the task of raising a child from infancy to adulthood are not going to undertake it without serious soul-searching, and are more likely to delay or forgo parenthood than those who haven't realized just how much work is involved.

A recent article in which Simon Schama spouts off about the incredible tediousness of most academic writing on history has been making the blogosphere rounds. He calls for a return to the so-called golden age of historical writing: Macaulay, Carlyle, and Gibbon. Timothy Burke comments on it approvingly, as does Invisible Ajunct, both with the caveat that academic history is the foundation upon which any modern popular historian must build, but Kieran Healy objects that it is nothing more than a pipe dream for a generalist to command the sort of respect that Macaulay did.

I think Kieran has missed the point regarding Timothy Burke and Invisible Ajunct's complaints. The problem is not that popular histories don't get written, or that they don't command respect from the public at large, the problem is the utter contempt such efforts are held in from within the academy. Part of this is, I think, envy of the money and fame that comes with television miniseries and bestselling biographies, but another part is the degree to which the type of epic history that Macaulay et. al. wrote embodied a conception of history in which only military and political events (and only the privileged men who particpated in them) were worthy of narration. Historians of all stripes rightly rebelled against these limitations, insisting that history as a discipline had to encompass much more than the story of great men and great events. This, however, is a battle that was won a generation ago, and now there is no reason that one could not write like Macaulay about the history of housework.

What Macaulay had that modern historians lack (besides a way with words) is a firm sense that there were important lessons to be learned from the past that would guide our actions in the present. It was this concept that justified popular historical reading--that, and the pleasure of a good story. Academic historians call this dumbing history down, for good theoretical reasons, but fail to realize that their enterprise is sterile unless it is dumbed down for public consumption.

I don't believe history as a discipline is in crisis--the tension between academic and popular history was first developed by Neitzsche more than a century ago in his treatise "On the Advantages and Disadvantages of History for Life", and there is no particular reason the current situation, in which historians in the academy produce technical works and historians outside the academy make their living recasting these works in ways that please the public, can't continue indefinitely, even with outright hostility of academic historians towards their populist bretheren. That said, I don't think the current situation is a healthy one. Both academic and popular historians have a deal to learn from one another. A healthy exchange between the two could go a long way towards injecting some life into the currently flat academic prose, and some moresophistication and accountability into popular histories, which are often riddled with inaccuracies that will go unnoticed by the general public.

On Wednesday, March 24th, the Supreme Court will hear oral arguments for Elk Grove v. Newdow -- the First Amendment/Pledge of Allegiance case.

Is anyone planning on being in DC and interested in going to oral arguments? If it's anything like the crowd for Lawrence v. Texas last year, you'll need to arrive at the Supreme Court no later than midnight, and probably 11pm is better. It was fun, if your definition of fun approximates mine, and an amazing thing to watch. Drop me an email if you'd like to meet up.

In an effort to corner the market on law students (until a few days again, we had none-- now we have three) as well as on En Banc bloggers, I'm happy to announce that our guest-blogger Jeremy Blachman is here to stay. He'll continue posting at his own blog, and also in whatever En Banc Redux effort resurfaces, so to really get your Blachman-fix you will have to hunt in several different places.

And, of course, we're very glad to have him.

I'm going to Kazakhstan to teach English for the Peace Corps!

the few facts I know:
- Dates of Service: June 9, 2004 -- August 18, 2006 (so I'll continue the family tradition of not attending convocation, but I'll be back in time for law school)

- I'll be teaching students age 12 to 17 (Fifth to Eleventh Forms) as a secondary school teacher. (exactly what I'd hoped for)

- Public secondary schools are mainly in villages (populations about 4,000 - 9,000) and in small towns (populations about 10,000 - 30,000).

- I'll live with a host family for the first three months of the program (the in-country training) and then the next six months of service. Depending on how many apartments are avaliable (how rural the area is), I may continue living in with a host family.

- There are Internet cafes in the cities and in many of the larger towns and Volunteers ususally manage to check e-mail on a weekly basis (weather permitting, of course!). (sweet. this is great news.)

- Airmail letters from the United States take three to five weeks to arrive.

- At the green bazaar, you can find—when in season—(long list) pomegrantes... Garlic, fresh dill, and basil are generally available; however, spices tend to be somewhat sporadic from site to site. Pack your favorite spices! Markets usually have chicken, cow, sheep, goat, pig, and horse meat. Horse meat is the Kazakh national favorite. (:-( I was hoping to ride the horses, not eat the horses)

- If the Country Director permits, I can ride a Peace Corps-issued bicycle. (I need approval for this?)

- The climate varies significantly with topography, but generally Kazakhstan has four seasons, with very cold winters and hot, dry summers. The duration of the season depends on the region of the country. Be prepared for temperatures down to -40F in the winter and up over 100F in the summer. (40 below? Chicago didn't prepare me for that. I don't think I've ever been anywhere that cold. But on the other hand --). Kazakhstan does not have many of the health problems of warmer climates, like malaria. . . . Because of the low humidity, many strange and rare diseases cannot exist here.

I'm going to Kazakhstan... that's the phrase that keeps repeating itself in my head... at some point, after the shock wears off of finally knowing where I'll be for the next two years and the glee of learning that it's Kazakhstan, I might have more in-depth thoughts... anyone been before?

Since my estimable co-blogger is recommending Intolerable Cruelty, I want to chime in and second his recommendation. Intolerable Cruelty owes much of its charm to its ability to borrow the conventions of the screwball romantic comedies of the thirties and forties, from the Texas oil tycoon lifted straight out of The Awful Truth to George Clooney channeling Cary Grant, to the georgeous hat Catherine Zeta-Jones wears at one key moment of the film.

Nevertheless, there was one particular difference that struck me as significant. Whereas one of the defining features of a screwball comedy was the speed of repartee, so that the hero and heroine would establish their rightness for each other by their ability to keep up in an exchange of witticisms (and by implication, in life generally) the banter in Intolerable Cruelty moves at a much slower pace. Good lines are drawn out, and given space in which to sink in. Moreover, in the crucial scene between the two main characters, nothing much is said by either one. Instead, they trade a few half-formed thoughts, trail off as he takes her hand, and the scene is finished.

Of what exactly this is apropos, I'm not entirely sure, but it seemed worth pointing out.

Michael Blowhard writes on developing a taste for black and white films:

It's fun to develop a taste for the many different qualities black and white movie imagery can have. But it's classy, grownup fun -- like leaving behind sodapop and developing a taste for wine. (Or, to be a little more blunt, like leaving behind masturbation and learning how to enjoy lovemaking with a partner.) At first all wines seem strange, murky, and hard to make out -- what's the big deal? But then something clicks and a whole new universe opens up before you. The good news is that you don't have to become a fussy snob in order to enjoy the fabulousness of wine. Once you're past the idea that wines aren't grape juice with alcohol, you learn to linger over them a bit. You learn to open up your senses and your mind ...

I wouldn't know about developing a taste for black and white movies, since I grew up watching them, but I rather like the comparison to wine. When my parents first bought a TV and VCR (this was when I was eight--I grew up in a household that leaned Luddite) so the family could watch movies together, they quickly decided that the best way to limit their children's exposure to movie sex and violence, while not themselves be bored silly by the triteness of most kiddie fare, was to rent old movies. My favorites were always the old screwball romantic comedies like Bringing up Baby or The Philadelphia Story. I wanted (well, really, I still want) to be wooed with witty banter by dapper men, while wearing an elegant evenings gown cut on the bias, or a chic suit topped by an outrageously large hat.

I don't look back on the thirties and forties as a golden era of film whose greatness has never been equalled. Watch enough old movies, and you'll quickly discover that the films time forgot have been forgotten for a reason, usually because they never really rise above the conventions of the period and genre. Nevertheless, I agree with the reasons Michael lays out for developing a taste for black and white films, and heartily second his recommendations for those just starting out.

In a clever move, the folks at Crooked Timber have snagged John Holbo and Belle Waring as guest-bloggers for now. And Mr. Holbo's inaugural post is full of many interesting observations about the blogosphere, including this one, which I'd like to second:

Ah, well. No matter how bad it gets at least we can all agree – each and every one of us – that Eugene Volokh is really, really smart.

I watched Intolerable Cruelty last night, and I should begin by saying that it's a really great movie. There was one point, about 80 minutes in, where I thought it was going to be a terrible movie, but it turned out to be an even more wonderful movie than I had anticipated. The movie also touched on one of my pet obsessions-- contractophobia. Specifically, in this case, the social norms for and against prenuptial agreements. However [WARNING: spoilers ensue]:

)ne point of law in the movie definitely confused me. This is the fabled "Massey Prenup," created, we are told, by Miles Massey himself (that's George Clooney), and to which a semester is devoted at Harvard Law School.

Supposedly it's great because it's somehow ironclad. But what does it really mean to invent an ironclad prenuptial agreement? If prenuptial agreements now are easily "pierced," then how plausible is it that some divorce lawyer could string together a two-page contract in ways hitherto unthought of to avoid any piercing (such is the movie's claim)? And if prenuptial agreements aren't now easy to pierce, then is Massey's acheivement important?

I should emphasize that I know very little about the law of contracts or divorce, so I simply don't know whether the movie's claims are implausible or trivial, but it seems likely that they'd have to be one of the two-- one doesn't innovate contracts the same way one innovates silicon chips.

And leaving aside for a moment the actual content of the mythical Massey Prenup, the rules for dissolving the prenup seem pretty weird. When Doyle eats a copy of his prenup in public at his wedding reception, everybody seems to agree that this renders him vulnerable. It's a little weird that one person's destruction of a contract can dissolve it. Maybe, I thought, the general rule is that the richer party (who is the one to benefit from the thing) can abrogate the contract by him/herself.

Of course, this rule still wouldn't make very much sense (what would happen if Doyle ate the contract and then his wife inherited a lot of money, becoming the richer party? Would his unilateral destruction of the contract when he was poor now render her exposed? If so, then the Massey Prenup is a pretty feeble reed.)

And it gets worse. Ms. RexRoth-Doyle-Massey(Catherine Zeta-Jones) rips up her prenup with Miles Massey, while he believes her to be the richer party. But, we later figure out, she isn't. Yet Massey/Clooney (the creator of the Massey Prenup) believes that this contract-destrution has rendered him exposed. Can the poorer party unilaterally dissolve the Massey Prenup? If so, then it's not even worth a day at Harvard Law, let alone a semester.

The explanation that the movie-maker must have had in mind is that the Massey Prenup can be dissolved with the consent of both parties. When Thornton eats the prenup at his wedding reception while Ms. RexRoth-Doyle looks on and blows him a kiss, we can interpret this to be her consent, and we have a hundred witnesses to prove it.

But this explanation still won't solve the Ms. RexRoth-Doyle-Massey/Massey prenup problem. Even if we take Miles Massey's reaction to Ms. RexRoth-Doyle-Massey's destruction of the contract to be consent (I think he responds by fiercely kissing her), there were no witnesses to the act. If Mr. Massey is such a cutthroat lawyer, he should realize that he has a decent shot of being able to fight the prenup dissolution in court simply by insisting that he wasn't there when she ripped it up and still very much doesn't consent to its dissolution. (And we know Massey is indeed that kind of cutthroat guy from other parts of the movie-- the lies he encourages his clients to tell, the hitman he hires to save his money from the woman he loves, and so on.)

Now, it's possible that Massey decided that while he could fight to maintain the contract in court that the hit man was a safer tactic, but given how nervous he seems to be about hiring the hit man, that strikes me as pretty unlikely. Still, it's the best I can come up with.

Now, as I said at the outset, Intolerable Cruelty really is a good movie-- movies almost never get the law involved in them actually right (I was with my mother when she turned off Serving Sara in disgust), so my expectations on that score were already pretty low. Still, all this business with people walking around and tearing up contracts is just silly.

Is Chicago the new San Francisco? The U of C ACLU is gathering signatures for this letter.

Actually, Groh v. Ramirez is a pretty interesting case too, featuring the mess that is 4th-Amendment jurisprudence (more on which next Monday). Here's just a bit from the beginning Justice Thomas's dissent (Justice Thomas's views on the 4th Amendment being the most novel and unusual of the current members of the court, and therefore the most interesting):

As a result, the Court has vacillated between imposing a categorical warrant requirement and applying a general reasonableness standard. . . [12 citations deleted] That is, our cases stand for the illuminating proposition that warrantless searches are per se unreasonable, except, of course, when they are not.

Howard Bashman rounds up the links to today's opinions from the Supreme Court (also available here). In the spirit of bloggery, a few assorted observations:

The Delma Banks case was discussed on this blog earlier (in its synechdocal or metonymic sense) here.

Olympic Airways has a fun Justice lineup (a pet amusement of mine)-- Justice Thomas wrote for himself, Rehnquist, Souter, Stevens, Ginsburg and Kennedy, with Justice Scalia dissenting and Justice O'Connor joining part of that dissent. [Even more fun-- Justice Scalia's dissent is in defense of the applicability of international interpretation of the law (because the case involves a treaty), which is, I think, a clever move for those who are worried about international interpretation of the law gaining more sway in other areas (like death penalty cases). Also, here's Dahlia Lithwick's coverage of the case, and my own earlier comment.

And the lineup is also vaguely interesting in Doe v. Chao, where: "SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O’CONNOR, KENNEDY, and THOMAS, JJ., joined, and in which SCALIA, J., joined except as to the penultimate paragraph of Part III and footnote 8." What, you ask, is in that objectionable paragraph and footnote? Nefarious legislative history:

Finally, Doe’s reading is open to the objection that no purpose is served by conditioning the guarantee on a person’s being entitled to recovery. As Doe treats the text, Congress could have accomplished its object simply by providing that the Government would be liable to the individual for actual damages “but in no case . . . less than the sum of $1,000” plus fees and costs. Doe’s reading leaves the reference to entitlement to recovery with no job to do, and it accordingly accomplishes nothing(8).

(8): JUSTICE GINSBURG responds that our reading is subject to a similar criticism: “Congress more rationally [c]ould have written: ‘actual damages . . . but in no case shall a person who proves such damages [in any amount] receive less than $1,000.’ ” Post, at 3–4. Congress’s use of the entitlement phrase actually contained in the statute, however, is explained by drafting history. The first bill passed by the Senate authorized recovery of both actual and general damages. See infra, at 7–8. At that point, when discussing eligibility for the $1,000 guarantee, it was reasonable to refer to plaintiffs with either sort of damages by the general term “a person entitled to recovery.” When subsequent amendment limited recovery to actual damages by eliminating the general, no one apparently thought to delete the inclusive reference to entitlement. But this failure to remove the old language did not affect its reference to “actual damages,” the term remaining from the original pair, “actual and general.”

Because Professor Drezner's topic today was outsourcing, he requested that the lesson be off the record for purposes of blogs, newspaper columns, and the like. So you will simply have to take my word for it that he leapt ahead in the foul language count by a large margin.

I also suspect I might have been the only person in the room whose views on outsourcing were made a little less Libertarian by Professor Drezner's speech. But then, when you're at the bottom, there's no place to fall.

Drudge links to this poll that says:

Two-thirds of Americans polled last month said they support the idea of televising executions -- and 21 percent said they'd pay to watch Osama bin Laden put to death.

Eleven percent said they would pay to see Saddam Hussein executed.

I imagine Fox executives are already making plans. But really, is this smart? "But, ma, I saw them do it on TV -- and we hardly ever use the dining room chair for anything else -- and electricity is practically free -- and no one likes Aunt Esther anyway!"

Other people not included in the survey, but would likely find a non-trivial number of people around the world would pay to see them executed: Any reality show contestant, Ralph Nader (at least from the press he's getting today), the lead prosecutor for the RIAA, Barney the Dinosaur, anyone who practices any religion or doesn't practice a religion at all, Michael Jackson's plastic surgeon, and the guy who won the jackpot on the slot machine right next to yours.

I'm happy to welcome to our ranks yet another talented blogger. Heidi Bond, of Letters of Marque, will now be a pemanent Crescatter posting here whenever she wishes. (She has a slight fear of commitment, you see). Links to all of her Crescat posts (from her earlier tenure here as a guest-blogger) are here. And I suspect she'll still be blogging plenty at her personal blog as well. Anyway, we're very excited to have her along.

(Oh, and if you're wondering, "Crescat Crescat" hopefully means "Let Crescat grow . . .")

In the course of looking up some information on Walter Mondale, I stumbled across what seems to be George McGovern's library website. Now, as somebody to whom the McGovern campaign is ancient history, it's quite possibly I'm missing something, but is it really accurate to begin the McGovern page with: "One of the most significant figures in America today,"?

I mean, I know that "One of the most..." is a wonderfully imprecise way to avoid having to say how many other people are more significant, but really, how widely do you have to cast the "most significant" net before it includes him? Put differently, how many other figures are more significant in America today than George McGovern? A lot, I would think.

A friend introduced me to the word "potvaliant" today. It means: "having the courage given by drink." (Or, if you're snooty and prefer the OED:

Valiant or courageous through the influence of drink.

1641 TATHAM Distracted State III. i, You are pot-valiant, sir, it seems. 1771 SMOLLETT Humph. Cl. 29 May, Like a man who has drunk himself pot-valiant. 1845 MIALL in Nonconf. V. 181 As pot-valiant as our friend Pistol.)

Bookslut and Terry Teachout are having it out (more and less politely-- not necessarily respectively) about the propriety of "link-poaching".

My own policies about when to credit a link (with a "via soandso", for example) strongly resemble Mr. Teachout's.

I'm not quite sure why Ms. Crispin thinks that it's "damn near ridiculous" that Teachout thinks he can "scold" bloggers who don't adhere to a common and socially useful norm. Leaving aside the comparative merits of their positions, isn't scolding the very currency of the blogosphere? Ms. Crispin can object to and distance herself from "the blogging community, the in-jokes and the sly winking at one another" if she wishes, of course, but it seems a little curious to get so mad at those bloggers who don't.

Anyway, my chief objection to Mr. Teachout's appointing himself "schoolmaster of the blogs" is that I've had my eye on the position for quite a while now. I even reserved a URL for a blog-etiqutte themed group-blog that never panned out. Maybe we can share the duties?

One other note-- if you're traffic-hungry, including "(via soandso)" credits in your post is an easy way to increase the circulation of your blog. Many of us with mid- to small- sized blogs check our technorati and sitemeter referrals a lot, and so that's a good way to increase the chance we'll stumble across your blog, and maybe link to a substantive post, and so on.

Ahh, pareto-efficiency.

I've finally figured out what bothers me about this argument by the Curmudgeonly Clerk:

If moral disgust is "meaningless" as an argument and, therefore, an inappropriate basis for state-enforced compulsion (i.e. legislation), then I fail to perceive how it could constitute valid grounds for moral criticism either. It seems a trifle strange to regard "Yuck!" as a satisfactory basis for castigating others on moral grounds if one has rejected it as a basis for forbidding the repulsive conduct in question on the understanding that "Yuck" is devoid of intellectual content. That is, I fail to see why "Yuck!" is any more convincing as a moral argument than as a legal one—assuming that one finds it insufficient in the latter regard.

There's just no reason to hold moral argument to the same intellectual standards as legal argument-- especially if one doesn't think moral arguments should be determinative of legal ones. This is circular reasoning, to be sure, but so is the Clerk's. It's perfectly reasonable and coherent to decide that law and morals should be reasoned in the same way, and therefore that moral objections to a practice should be sufficient to make it illegal. But it's also reasonable and coherent to say that the two shouldn't be reasoned in the same way, perhaps because moral statements are basically meaningless (this is the Logical Positivist take) but legal statements aren't meaningless because they attach real-world consequences to one's actions. For a lot more on this, read Oliver Wendell Holmes's essay The Path of the Law.

Again, this isn't an argument for why morality shouldn't be allowed to constitute a legal argument. I don't think there is a very good argument for that, but neither is there a very good argument for why morality should.

In any case, once we realize that the Clerk's objection assumes what it tries to prove, then we see what's wrong with it. There's just no reason to suppose that moral disgust should be inappropriate grounds for moral criticism (thus the modifier "moral" on each phrase). Since moral criticism is relatively low-stakes, I'm willing to permit many things as valid moral arguments when I nonetheless don't think they should be valid reasons for taking American citizens and locking them up.

And it's not just me. Since the Clerk's broader project seems to be indict Libertarians, I should share that I spent last summer living with 39 other Libertarians as part of a semi-vast Libertarian conspiracy in Washington D.C. Of my friends there, one was a devout Christian who believed that a number of things (such as promiscuous sex, etc.) were probably wrong. Another was gay and disapproved of homophobia and discrimination against homosexuals. And so on. But none of them thought that their moral objections to the practice should be sufficient to turn the practice into a crime. Their reasons for this dissonance varied from person to person. Some made a religious argument in favor of free will. Others made a secular humanist argument in favor of the same. Others made pragmatic economic arguments. And so on.

This isn't an argument (I repeat myself) that such disjunctions between "moral disgust" and "legal punishment" are necessary, but I do submit that they're not uncommon, and that they're particularly common among Libertarians, and if the Clerk wishes to issue an indictment against Libertarians, he's going to have to try harder.

I just thought I'd note, for those of you who are interested, that the parody of Crescat Sententia, Assprat Pretentia, seems to be up and running once more. There are two new posts, and they've retained Assprat's trademark style, though they're about twice as vulgar and half as funny as the previous ones.

(Via my friend Sarah Hanson) I found this essay: Words and Expressions Commonly Misused by Insipid Brothers-in-Law. While I'm as much of a stickler as the next guy, the author has, alas, failed to consult very many dictionaries (which is odd, given how much he vaunts them).

Compare and contrast:

The essay (emphases his):

It really IRRITATES me when people do not use proper grammar. It does not AGGRAVATE me. Do you understand that? IRRITATE means "to annoy," and AGGRAVATE means "to add to." So, if you're already IRRITATING me with your abominable speech and your insistence on smoking a cigar in my living room, your saying, "Hey buddy boy, don't get so AGGRAVATED; I'll open a window," will only AGGRAVATE the situation.

Aggravate: ... 7. To exasperate, incense, embitter (a person); famil. to provoke, arouse the evil feelings of.

1611 COTGR., Aggravanter, to aggravate, exasperate. 1634 T. HERBERT Trav. 93 This aggra[va]ted the Persian king exceedingly to be so bearded. 1748 RICHARDSON Clarissa (1811) I. 345 If both were to aggravate her parents, as my brother and sister do mine. 1858 THACKERAY Virgin. xvii. 134 Threats only served to aggravate people in such cases.

I'm going to try to put this as simply as possible, because I realize that some people thought of English as an elective in college. "FARTHER" is a word that refers to distance. "FURTHER" refers to time or quantity. "FARTHER" has the fucking root "FAR" in it. Like "FAR away from my sister." Do not confuse these two.

Farther: b. in time: Longer.

1548 FORREST Pleas. Poesye 26 As Ferdre in reigne grue their contynuance. 1640-1 Kirkcudbr. War-Comm. Min. Bk. (1855) 42 Until the next Committie day, and farder during thair plessor. 1711 ADDISON Spect. No. 120 5 Some Creatures cast their Eggs as Chance directs them, and think of them no farther. 1802 M. EDGEWORTH Moral T. (1816) I. vii. 45 Then we need argue no farther.

Further: 4. At a greater distance in space; sometimes with mixture of sense 1. Also more further, further off. (Cf. FARTHER A. 4.)

c1400 MANDEVILLE (1839) xxxi. 306 Oer Yles at ben more furere beonde. 1578 WHETSTONE Promos & Cass. II. iv, The furder off I wretched finde both comfort and reliefe. 1601 SHAKES. Jul. C. II. ii. 125 So neere will I be That your best Friends shall wish I had beene further. 1630 R. Johnson's Kingd. & Commw. 68 Island disjoyned no further than a ship in one day may saile unto. 1710 Tatler No. 254 7 The Dutch Cabbin, which lay about a Mile further up into the Country. 1812-16 J. SMITH Panorama Sc. & Art I. 572 It was calculated to be 18,000 times further from us than the sun. 1875 JOWETT Plato (ed. 2) IV. 156 There is nothing further from his thoughts than scepticism.

the "essay" you link to and spend so much time debunking was published by McSweeney's, one of the best-regarded and most innovative magazines of ironic postmodern short fiction being published today. Keyword
"fiction". In this case, I've heard that this sub-sub-sub-genre/style is occasionally referred to as "parafiction", I suppose since takes the form of a faux nonfiction piece.)

I posted a version of this over at my solo blog, but I figured as a follow-up to my post the other day about the gender experiences survey here at HLS, I'd post something here too.

I read the full 87-page report (password-protected for Harvard students only, it seems), and the most compelling part, to me, wasn't the survey data but some of the selected student comments that were included:

One female 3L wrote, “I've been surprised by the number of people that I see disengaged from life at HLS – both academic and extracurricular. There are lots of people who stop vocalizing what they are passionate about after their first year.”

One male 3L wrote, “The school manages to take 500 of the brightest and most motivated students in any field in the country and systematically pacify and alienate large proportions of them, so that by the time they are in their third year, many if not most students rarely attend class, do the reading, or care a fig about law.”

I think it’s important to look at gender differences, and certainly if there are ways that women are being disadvantaged we should work to figure out why and address it. But these quotes, and there are other ones like it, from men and from women, I think capture broader problems facing law students of both genders, and at lots of schools: a lot of people just don’t seem to care that much. And maybe there are ways to fix that. I don't know. But if the report at least starts a conversation, that's a good thing.

[Now I'm going to ruin it and try and be funny by parodying the survey]

Study on Lazy People’s Experiences at Harvard Law School
By the Non-Working Group on Student Experiences

Classroom Participation

We monitored student participation in three or four courses, but fell asleep before any statistics could be collected. Of the results we did collect, we found that lazy students spoke on average 98% less often than motivated students, and were responsible for just 2% of comments in class. Those comments included: “could you repeat the question please?” “will this be on the exam?” “are we really going to get to tomorrow’s reading assignment, or can we just skip it?” and some audible snoring. Lazy students consistently volunteered less often than motivated students, and often remained in their seats for a substantial amount of time after class, failing to realize the class had ended.

Extracurricular Activities

Lazy people comprised just 1% of the executive boards of journals, and could not be found in any statistically significant numbers on Law Review, or ever having even considered it. In fact, lazy people were more likely to travel to outer space than participate in the law review competition, for the years examined.

Student Life and Satisfaction

Lazy students and motivated students differed substantially in how they described their own abilities. Lazy students gave themselves significantly lower scores in skills like “waking up early,” “doing the reading,” “eating three meals a day,” and “going to the bathroom regularly.” However, they gave themselves significantly higher scores in “watching television,” “surfing the Internet,” “wandering around aimlessly,” and, with a tremendous disparity, “sleeping.”

Employment and Clerkships

While there was little difference in the percent of lazy students versus motivated students who accepted a job offer at a large law firm, a substantially higher percentage of lazy students never bothered to show up for work. In addition, 42% of lazy students missed important deadlines like confirming their offers, choosing preferred practice areas, and filing their taxes. Once at work, lazy people were much more likely to cry at random points during the day, and wish they had gone to art school instead. In terms of the three most important factors in choosing a career, lazy students chose “not having to do all that much work” almost 14 times more often than did motivated students.

Academic Performance

We investigated grade patterns, and found that on average lazy students and motivated students received exactly the same law school grades.

I got an e-mail today that asked me, in light of my guest blog stint here, what Crescat Sententia means. And I realized I have no idea. I'm sure I could look it up. It sounds like it has something to do with the moon rising, or the sun sleeping, or something rather poetic like that. So it probably actually means "pile of dung" or something else particularly unpoetic. I then started to realize there are lot of things in the world around us that I accept at face value and don't question what they actually mean. Most car names. Toyota. Hyundai. Mercury Sable. Sable is a smoked fish (next to the whitefish salad, usually). Mercury is poisonous. Not a good pair. And nothing to do with a car. Prescription drug names. Celebrex I always assume must alleviate some terrible symptom, because it's name sounds like "celebrate," which is what I would do after a terrible symptom had been relieved. I find it confusing that some drug companies name their drugs to sound kind of like what they do -- Levitra, the new erectile dysfunction drug, is especially subtle -- and some don't. Zithromax helps bronchitis. I can't figure out how the name relates. Others I can imagine a connection -- Rogaine; gain hair; "ro" sounds like grow -- similarly, Propecia implies prodigious hair growth perhaps... -- but I'm not sure if it's really there or I'm imagining it. I have no idea why Frito-Lay decided Fritos sounded like a good name for a corn chip, or Lay's was a meaningful name for a potato chip. Puffs is a great tissue name, but Scotties less so. Kleenex I read was invented by some guy who liked the sound of the word. Or maybe that was Xerox. Or Kodak. Dr. Pepper and Grape-Nuts baffle me, since I don't taste any pepper or grapes in either one. My Thinkpad doesn't think, and I can't write on it. I do the thinking. Sometimes. Not in this post. :)