The Right Coast

January 31, 2005
The Constitutional Minute
By Gail Heriot

A bit of shameless self-promotion: In February, I will be on the Roger Hedgecock Show (KOGO 600 AM, 3:00 to 6:00 p.m.) a couple of times a week giving the "Constitutional Minute." Each minute is a little tidbit in the history of the Constitution for that week. I'll be posting some of them on the blog. (In fact, I already posted one this morning, didn't I?)

Juan Cole on Iraq
By Tom Smith

This ain't no party, this ain't no disco, this ain't no foolin' around.

Even so, we could stand a few more failures like this one. And as the old man used to say, anything is possible, if you don't care who gets the credit.

That's not funny
By Tom Smith

Are men funnier than women? The fact that you can even ask that question shows you have no sense of humor.

Why do (some) boys think it's important to (try to) be funny? Because in some obscure part of what passes for their brains, they think it will get them some female attention. Not everybody can play basketball. Even fewer can play basketball in a way that is genuinely funny.

More fitness bather
By Tom Smith

If you're not a fitness obsessed middle aged person of guyness, don't even bother to read this post. There. Is this everybody? Fine. So here's this test from the Post to measure your fitness level. It's the first encouraging thing about fitness I've read in a long time. Given that I am about 50 lbs heavier than I am supposed to be according to the chart in my lovely wife's office, it's nice to have a chart that tells me I am mostly in excellent shape, except for being very inflexible, which I knew already. But can the ability to do 22 push-ups really make you very fit? Sounds pretty pathetic.

Now for a review of Combat Conditioning, a book that seems to be flogged in nearly every right wing blog on the internet. Bottom line, big surprise, I like the book quite a bit. At about $30, it is overpriced, but all these books are. But if you consider an hour with a personal trainer will run you at least $50, it's a bargain. The book is also a blast from the past. It stresses all these old-timey calesthenics that you will remember from gym class, before not humiliating Johnny became a priority. You may have my reaction: "I remember that drill! I hated that!" Yes, because it really kicked your butt, which is good for you. Matt is big on "Hindu pushups" aka judo pushups, etc. etc., which I have been doing in my spare time and have decided I really like. "Hindu squats" just deep knee bends with attention to breathing, really do seem to work you right through, and are very aerobic. It's nice you can do all this stuff while watching TV or trapped in your hotel room. And neck bridges? I would ignore the advice about pushing back till your nose touches the mat. A neck is a terrible thing to break. But with moderation, these really are hard, and tell you you need to use some big back muscles more than you're used to. Most of these exercises seem to grow out of grappling. Matt was a successful if not Olympic quality NCAA wrestler before he became a fitness guru. He seems to have won some international martial arts titles as well, but I never know how to judge those. But I think these exercises are swell for anyone who wants to build overall strength without being tied to the gym. His emphasis on avoiding injury certainly makes sense. Best of all, it's another thing to spend money on, that you can read on your cozy couch.

Latest brilliant entrepreneurial idea
By Tom Smith

How about a car magnet, a la those yellow ribbons you see a lot of (at least here in East County) along the lines of the dominant theme in these photos. Kind of a message to MSM, terrorists, it-will-never work folks etc.?

By Gail Heriot

Bless them. They came.

January 31: This Day in History
By Gail Heriot

On this day in 1865, before the Civil War was even over, the Thirteenth Amendment banning slavery was proposed by Congress. Before the year had closed, it had become law.

The honor of being the first state to ratify went to Abraham Lincoln’s home state of Illinois. The vote was taken just one day after the proposal was made. By the end of the week, 10 more states–Rhode Island, Michigan, Maryland, New York, Pennsylvania, West Virginia, Missouri, Maine, Kansas and Massachusetts -- had joined in what was probably the fastest work by state legislatures on record.

But not every state was fast. New Jersey, having originally rejected the amendment, changed its mind a year later. Delaware, reversed its refusal to ratify in 1901. And Kentucky finally came around in 1976. The last state was Mississippi, which ratified in 1995. Better late than never, I suppose.

January 30, 2005
Cruel and Unusual
By Maimon Schwarzschild

Our colleague Laurence Claus has a fasinating piece in the latest (Fall 2004) Harvard Journal of Law and Public Policy on the meaning of the Eighth Amendment prohibition of "cruel and unusual punishments". (You will have to visit the periodical room of your library to read it: the Journal doesn't post articles online. But you've been meaning to go and look at the Summer 2004 number of the Harvard Journal of Law and Public Policy anyway, to read Michael Novak's assessment of the Iraq war; now you can read two excellent articles in one exciting off-line outing.)

Laurie says that the words "cruel and unusual punishment" could mean any of three things: vicious methods of punishment, punishments that are excessive when compared to what other jurisdictions inflict for comparable offences, or invidiously discriminatory punishments. Laurie produces lots of evidence that what the framers of the Constitution, and their generation, intended was the third: that criminal punishments not be discriminatory. In other words, it is unconstitutional for a disfavoured culprit to be punished -- vindictively -- more severely than another whose case is morally indistinguishable:
To inflict "cruel and unusual punishment" on a person... is to punish that person more harshly than others for morally insufficient reason.
Laurie concludes:
Constitutional meaning is not a creature of linguistic happenstance. Disengaged from history and context, the words "nor cruel and unusual punishments inflicted" may be read to condemn any of three things [noted above]. But that is hardly sufficient warrant for an interpreter of the Constitution to say "We'll have 'em all!" The right interpretation... is a creature of context and history. History reveals that the provision was designed and understood to prevent invidiously discriminatory punishment. The Eighth Amendment is not a chameleon, and its true complexion is much clearer than the Supreme Court has hitherto recognized.
I have a few reservations. First, I'm not sure I am as stern an originalist as Laurie. And second, Laurie acknowledges -- and cites evidence -- that there were growing feelings in the late eighteenth century against vicious and cruel punishments per se. Laurie points specifically to statements along these lines during the ratification debates in Virginia. But this was a phenomenon that went well beyond Virginia, and in fact beyond America and the rest of the English-speaking world. Voltaire was famously revolted by the torture and execution, for blasphemy, of a boy in France in 1766 for failing to doff his hat to a procession of priests: it was this incident, as much as any other, that produced Voltaire's battle-cry of the Enlightenment: "Ecrasez l'infame!" ("Extirpate the infamy"...) I suspect that a deep impulse against this sort of punishment, regardless of any invidious discrimination, may have been more of a conscious motive for the Eighth Amendment than Laurie acknowledges.

But Laurie's piece is provocative, with lots of historical and common-law evidence that I might be wrong. Get out of the house, when you can, and read the whole thing: "The Antidiscrimination Eighth Amendment" by Laurence Claus, Harvard Journal of Law and Public Policy, vol 28 no 1, Fall 2004, p. 119.

Fear of State of Fear
By Tom Smith

The NY Times reviews Michael Crichton's new thriller State of Fear
today, and to what should be noone's surprise, they don't like it. And they shouldn't. The book is a perfectly yummy piece of mind candy wrapped around the not implausible thesis that global warming is little more than a hoax. Crichton cites studies, including the well known account of how the politicians skewed the scientists' report in the last big UN study, to the effect that there's no good reason to believe that human activity is causing global warming, if it is happening at all.

If you like thrillers, or if you like Crichton, you should buy the book and read it. I'm not sure when Crichton became one of us. One interview I read suggested it was a home invasion robbery that changed his mind about gun control. Funny how that works. Who better than one of Hollywood's biggest players to write a novel in which the Martin Sheen character, after spouting off stupidly about how all that is natural is good, gets (spoiler ahead!) eaten by a bunch of depraved savages on a godforsaken isle in the middle of the Pacific. I can't be the only reader who found this moment as tastey as the fictional cannibals must have found the movie star.

Crichton is not an expert on climate. What he is is a Harvard trained MD turned writer producer who pulls down, I have read, about $100 million a year and can afford to do exactly as he pleases. He read up on global warming and reached the tentative conclusion that it is a crock. Rather than write an article in the Weekly Standard a few thousand people would have read, he wrote a novel that a few hundred thousand will. He's a clever fellow. He does a service by telling people that researchers have agendas, have to sing for their suppers, and that science has to be taken with a grain of salt. Hollywood, on the other hand, can just be dismissed entirely. They are never right, except by accident.

But my point is simply to commend State of Fear as very good fun, with a message that deserves to be listened to. For my part, come May, I think STOFFEAR would make a nice vanity plate on my Suburban.

Post conference blog post
By Tom Smith

Well, I spent Friday and Saturday morning at Steve Bainbridge's conference up in LA on the Means and Ends of the Corporation, sponsored by the Sloan Foundation (a billion and a half dollars, started by the first CEO of GM, looking for ways to advance our understanding of business). It was actually a pretty good conference, and this comes from someone who usually regrets going to any given conference. There were a number of papers that were that rare thing in a piece of legal scholarship, interesting. Einer Euhlange of Harvard started off with a very closely argued paper that, for all of its logical rigor, managed to avoid addressing what I thought were some pretty obvious objections. He wanted to explain why it was good corporate directors should have lots of discretion, as this would allow them to do good things. But what to do if shareholders didn't concur on what was good, he did not really address. I was grateful for the paper, though, as it gave me something to attack in my five minutes in front of the class. Henry Manne nodded and smiled approvingly at my complaints, so I least I knew I was appealling to the law and econ crustaceans in the crowd, of whom I suppose I count as one. Ed Rock of Penn had a very interesting paper applying the "discursive dilemma" to corporations. Without getting into it, this is a way that promises to revive somewhat the wrongly discredited idea of corporate personality. Two economists from Harvard gave more or less incomprehensible presentations, but one of them, by Oliver Hart, a very distinguished theorist of the firm, seemed very promising, even if I didn't really follow a lot of it. He had a simple model that purported to explain why parties sometimes agree to some terms (such as price) and then go on to negotiate the rest of the deal later, still holding the fixed term as fixed. Of course, we do that all the time in contracts, and it is a bit hard to understand theoretically. So that may be a paper worth struggling through at some point. Bill Bratton gave a very interesting historical paper on the evolution of corporate law reforms, using some evolutionary game theory as part of its story. I like evolutionary game theory, and the paper had the ring of truth about it. Stephen Presser made the point in his paper, which I think is a profound truth about corporate law, but I didn't know anybody else thought so, that it has a strong republican strain, having the object of democratizing ownership (and I would say control, too) of business enterprizes across this land of ours.

There were other good papers too. Steve Bainbridge had arranged dinner at a very nice restaurant in LA. I sat between Bill Bratton and Stephen Presser and drank more than I should have, as per usual at these events. It turns out Stephen Presser lives next door to my brother-in-law's sister in Winnetka. Small world theory confirmed yet again. The three of us decided to walk back to the hotel rather than take the law professor bus arranged for us, which took about 40 minutes, and burned up some of the 4000 or so calories I had consumed at dinner. I returned to my room and in honor of being in LA watched Collateral on the pay for view. I thought it did a good job of capturing the soulless feeling of LA which we San Diegans never tire of harping on, yet the next day dawned sunny, and the city looked beautiful.

I didn't fweel so good, but managed to sit through a session without slapping my laptop with my face. I then caught a cab to LAX, and spent an hour waiting to board, as I have a superstitious dread of missing a plane. I listened to a 45 year old marine boasting to a much younger leatherneck about how tough he was, compared to the new breed. He allowed as his girlfriend was 27. The younger was telling the older about how tense he was all the while he was in Iraq. (I like to eavesdrop in airports. What can I say.) They both looked quite tough to me. The ancient Saab turboprop, a real Greyhound with wings, somewhat to my surprise, got us to San Diego intact, which always feels so slow and calm after LA. Though it had been fun to roam, it was good to be back home.

The annoying New York Times, part 27
By Tom Smith

In its ongoing and probably futile effort to establish the attitude of cute, condescending superiority to everything, but especially blogging, the New York Times opines on family blogs in today's Sunday edition. It is not a bad article, but it is annoying. It is just too rich for the New York Times to critique moms and dads who write about their kids for being self-absorbed. The Times needs a little remedial work on the whole self-other thing. When you worry endlessly about what you should wear, where you should eat (French-Korean? Thai-Bangladeshi? Nouveau Tex-Cal-Puerto Rican?), whether your career is as dazzling as it should be for someone who has just turned 31 and 2/3, that is self-absorbed. Children are, in any remotely healthy family, not the same people as the parents. I suppose a social movement in which people want to adopt themselves as their own children is coming, and when it does, the Times will be the first to sneer at us for thinking it is stupid, but for now, parents and children, take note in New York, are different people. Writing about your kids is not being self-absorbed. It's being absorbed in others. There's a big difference. For a publication that never misses a chance to indulge in irony, you would think the notion that calling others self-absorbed might trigger some sort of warning, when your subscribers probably boast the highest percentage of income spent on psychoanalysis of any newspaper in the world. I once read an entire article in the Times that was about the awkward self-consciousness of sitting in the waiting room of your shrink, wondering whether you were more or less interesting to the analyst than the other patients sitting around. In case you are wondering, it is not normal to think that way, or to have a publication which is read by enough people who think that way, that it makes sense to publish an article about it. If you see what I mean. What the Times really means to say is that by being absorbed in their children, parents are not self-absorbed in a way the Times can relate to, and that makes them uncomfortable. Maybe they should go someplace expensive for a few days, and wonder whether they are too self-absorbed. I mean, seriously. The Times magazine recently started a regular feature about "the things we consume." It's called "Consumed," (get it? -- we are consumed by the things we consume, at least some of us are) and this week it's about middle-aged ladies buying nice red hats, only it's far, far more sociologically significant than that. It's about identity, who you, or actually, more to the point, I am. Call me self-absorbed, but I would far rather read funny stories about moms and dads dealing with life in the HOV lane, than being bored by the hermeneutics of what ladies who lunch wear for toppers. I mean, hats, for heaven's sake. How could anyone be more interested in "the things we consume" than the antics of little persons who run around and break things, when they are not trying to eat them? But life is somewhat just. Starbucks charged me only 50 cents for the Sunday Times, calling it the Times Picayune on my receipt, which makes no sense, as we have no such newspaper in San Diego. Had the line not been so long, I would have probably corrected the mistake, but I had to get my 11 year old back to Volvo and home.

January 29, 2005
The War in Iraq and the Left
By Mike Rappaport

Cold Fury has an excellent post setting the record straight. The only subject it slights is the importance of introducing democracy into the Middle East. (Hat tip: Instapundit)

January 28, 2005
Plaintiffs Jennifer Gratz et al. Awarded $672,000 in Legal Fees
By Gail Heriot

When the Supreme Court decided the University of Michigan affirmative action cases back in 2003, in some ways the litigation seemed to end a tie score. While the Court upheld the University of Michigan Law School’s admissions scheme in Grutter v. Bollinger, it condemned as unconstitutional UM’s undergraduate policy in the companion case of Gratz v. Bollinger.

It was easy to get the misimpression that the Court had simply split the difference between supporters and opponents of these policies and that both sides had received about half of what they wanted. In fact, however, Grutter was a huge loss for those (like me) who favor race neutrality. Gratz, on the other hand, for all practical purposes was a small victory at best. Any university whose then-current race-based policy would be banned by Gratz could, without too much trouble, re-model its policy in the style approved in Grutter and achieve the same results. The difference between the two programs was almost entirely a matter of style, not substance.

But that’s not the whole story as yesterday’s events demonstrated. Plaintiff Jennifer Gratz and her co-plaintiff still won, and were still entitled to their attorneys’ fees–which Judge Duggan awarded in the amount of $672,000. Their individual cases are victories even if their value as precedent is small. And that means the movement to ban race and gender preferences in state college admissions can survive to fight another day.

It’s interesting to see how the press reported the event. The Houston Chronicle, for example, played it straight with a headline that read, “College Ordered to Pay Legal Fees: Federal Judge Awards $672,000 over Michigan’s Use of Affirmative Action.” The Ann Arbor News, however, chose to emphasize the hardly uncommon (indeed expected) fact that plaintiffs asked for more than they got with “Legal Fees Billed to U-M Cut: Judge Slashes Request from Affirmative Action Plaintiffs’ Attorneys.”

Herb Klein
By Gail Heriot

I just got back from a breakfast honoring Herb Klein, until very recently Editor-in-Chief at Copley Newspapers. The event, sponsored by the Adam Smith Institute of California (on whose board I sit) drew a large crowd and featured an interview with Klein by ASIC President Ken Moser. Klein, it seems, has been everywhere, especially when it comes to the career of Richard Nixon, with whom he had been associated beginning with Nixon's Vice Presidential campaign in 1952. Klein served as Nixon's White House communications director from 1969 to 1973.

One of the things that struck me about Klein’s story was the good relationship he enjoyed with his Democratic counterpart, Pierre Salinger, during the 1960 Presidential campaign. They were adversaries, yes, but they shared polling data, jokes and had a sense of common enterprise. Kennedy wasn’t saving the world from Nixon, and Nixon wasn’t saving the world from Kennedy. The two of them were simply running against each other for President. This wasn't 2000 or 2004 (or for that matter 1964, 1968, 1972 ....)

Of course, that good relationship didn’t stop the voters of Chicago’s infamous river wards from holding strong opinions. Some preferred Kennedy over Nixon so strongly that they refused to let a little thing like their own deaths keep them from voting. These graveyard Democrats delivered just enough votes to deliver the crucial state of Illinois to Kennedy (and similar events in San Antonio may have also given Kennedy the equally crucial Texas). In the end, three overzealous Chicago Democrats went to jail for election-related crimes, and 677 others were indicted. And, of course, Kennedy (who was not himself implicated in the scandal in any way) was elected.

Some urged Nixon to challenge the election. Kennedy, for his part, offered Nixon a seat in his cabinet in exchange for Nixon's promise to leave things alone. But Nixon, to his credit, saw the issue terms of duty. He felt that it would not be in the nation's interest to have the election results up in the air. He refused to challenge, declined Kennedy's offer, and bowed out. (In contrast, here in San Diego, the results of last November's mayoral election are still being litigated.)

Years later, Oliver Stone would portray these events in his movie Nixon. You might remember the "Herb Klein" character. He was the unattractive one who was smoking cigars and urging Nixon to fight to the death. Except that Herb Klein doesn’t smoke cigars. And he advised Nixon not to challenge the election. And at 86 he seemed to me to be an altogether charming and attractive man.

January 27, 2005
Conservative Philosophy Blog
By Mike Rappaport

An extremely interesting new blog, The Conservative Philosopher. Its subtitle says it all: Defending Tradition with the Weapons of Analytic Philosophy.

The initial posts seem serious and interesting. Still, it is more conservative than I am. When I read a blog of libertarians, such as Liberty and Power, I feel like a conservative. When I read a blog of conservatives, like this one, I feel like a libertarian. I guess I am just an old fusionist conservative/libertarian.

January 26, 2005
Self-Defence and the War in Iraq
By Maimon Schwarzschild

The Catholic intellectual Michael Novak writes a strong defence of the Iraq war, on traditional self-defence grounds among others, in the Summer 2004 Harvard Journal of Law and Public Policy. (The Journal's articles are not online, alas, and its website can best be described as embryonic.)

Says Novak:
[T]he canons of self-defense put forth in the U.N. Charter, as former President Cossiga of Italy recently pointed out, sufficiently established the moral legitimacy of the removal of Saddam Hussein from power by the Coalition of the Willing. The alternative was to leave in place a major supporter of world terrorism against the United States and other nations, a particularly cruel tyrant over his own people, a bellicose, destabilizing threat to his immediate neighbors, and a leader ordered by the United Nations (in vain) both to destroy his known weapons of mass destruction and to provide proof that he had done so.
Novak's argument has subtlety and depth. Stop by the periodical room and read it when you have the chance: "Just Peace and the Asymmetric Threat: National Self-Defense in Uncharted Waters" by Michael Novak, Harvard Journal of Law and Public Policy, vol 27 no 3, Summer 2004, p. 817 - 841.

Marriage, Schmarriage (Part VII): Partial Measures and the Ability to Reconsider
By Gail Heriot

In this series, I believe that I have laid out plausible conservative arguments in favor of and against the legal recognition of same-sex marriage. See here and here. But for reasons that I have already described, I am somewhat more persuaded by the argument against.

In this post, I want to get back to a point that I made in Part I–that the choice for same-sex couples is not between the legal recognition of same-sex couples and nothing at all. There are at least two options available under current law. First, nothing prevents a same-sex couple from simply declaring themselves to be married and attempting to live their lives accordingly. (See Part II). No, the marriage would not be legally recognized (and would not carry with it tax or other legal benefits). But marriage has been around a lot longer than governments, and I'll wager that if the state ever withers away, as Mr. Marx so famously predicted, marriage will still be here. For most purposes (and certainly for the most important purposes), legal recognition is quite beside the point.

Second, in many states now, a same-sex couple may enter into a civil union, which at least here in California carries with it precisely the same benefits as traditional marriage. What's at issue is simply the use of the word marriage--and the symbolic statement that homosexual unions and heterosexual unions are equally deserving of the state's protection and nurture.

It's interesting to think how our experience with these options will affect the debate over time. For example, if private marriages and civil unions turn out to have infidelity and divorce rates that are similar to those of traditional marriage, that would go a long way to convince skeptics like me that same-sex marriage would be a good thing and that present concerns are unfounded. Alternatively, if divorce rates are very high, that might help convince some same-sex marriage enthusiasts that same-sex marriage is not such a great idea after all.

Of course, the opportunity to re-evaluate the issue may never come in some states. When same-sex marriage advocates decided to pursue a litigation strategy rather than attempt to persuade voters to support their cause, opponents opted for the only counter-strategy available to them: They passed state constitutional amendments defining marriage to rule out same-sex marriage. (That's how democracy works you know.) Same-sex marriage advocates will thus have a tougher time switching to a "go slow" strategy than they would have had had they started with it. Now they will have to work to repeal these amendments--no easy task.

Book Review
By Gail Heriot

OK, I admit it. I must have been inspired by something "akin" to vanity when I purchased the new novel--The Last Pope--which features a character named Ignatius Heriot as a Roman Catholic Cardinal who becomes the first American pope. There aren't many Heriots in the world, so I take a certain pride in their accomplishments, even when they are fictional. But I have been duly punished for my sins. The book pits "coldly disdainful" conservatives against warm-hearted liberals who really care about people (particularly people whose problems fit into the usual litany of liberal causes); it clubs you over the head with its political slant and its symbolism. It was a painful read. Maybe in the next edition the author can change the character's name to Ignatius Nixon.

January 25, 2005
Abortion statistics
By Tom Smith

This speech by Hillary is quite interesting. On the radio this morning, Rush was taking the line that Hillary's reaching out to the right to lifers was to be spurned. I'm not so sure. She may be an opportunist, but that is the nature of politicians.

But anyway, I am more interested in her claim that 7 percent of women account for 53 percent of abortions. That is very interesting, if true. From other sources, to be linked to at a future moment of lesser laziness, I know that number of sexual partners is power law distributed, so that a few hub people have very many sexual partners, while the vast majority of people have but a few. Curiously, income distribution follows that same pattern. Of course, this hardly means there is any sort of causal connection. It would just be interesting to know.

It seems probable that the 7 percent who get many abortions, and I wonder how many that is, are also at the skewed end of the sexual partners distribution. Perhaps not, but it seems probable. I wonder who these women are? Are many of them prostitutes? It would be interesting if it were the case that by enforcing laws against prostitution more rigorously, one could greatly reduce the number of abortions. I suppose good data on who is a prostitute is hard to come by, since presumably only a small percentage of prostitutes have actually been arrested or convicted for that crime. There might be other markers, however. Somehow I doubt researchers are falling over themselves to find this out.

The really important things
By Tom Smith

Here in SoCal, some things are more important than others, and something that is really important, is parking. It was a big moment maybe ten years ago, when faculty members at the law school finally got their own reserved spaces, or at least the opportunity to rent said spaces for hundreds of dollars a year. With this leasehold (OK, license) came the sense that there is something profoundly wrong, something against the order of things, when somebody trespasses on your parking spot. Here at USD, which some are unkind enough to say stands for "University of Spoiled Daughters," this often means some undergraduate driving a car a faculty member could not afford.

So it was this morning when I drove up to my accustomed berth only to see two young ladies, who looked about 13 years old, just about to walk away from their Lexus SUV, which they apparently intended , defying all natural morality, to leave in my spot, which has the nice, round number of 50, as if designed for me by fate itself. I honked my horn, and made a gesture intended to convey that the wrath of God would descend upon her and her children forever if she did not immediately vacate my spot. After some hesitation, she did, with the universal gesture meaning "Whatever!" She immediately pulled into another faculty member's spot. This would not stand. I told her she could not park there either, and that if she did, I would have her towed. "I'm just going to be here five minutes, OK?! Just relax! Whatever! OK!" No, it was not OK. Nobody parks anywhere for five minutes, and besides, it was wrong. I pulled out my cellphone, and made a show of calling Parking Services, whom I was pretty sure I could inspire with the same sense of outrage I felt at this wanton violation of parking natural law. I should add, this was not even a law student, but an undergraduate, perhaps even a person of freshness. She obviously did not know the seriousness of parking. She was about to find out. Now it was a war of wills. But I had the tow truck on my side. How would mom and dad feel about having to bail out the Lexus? In a huff, she pulled away. Whatever! Yet, I doubt it will be the last parking spot she will steal.

The USD parking story of all time, which I know to be true, and may have told before, comes from my former student Bill. This was before the new lot opened up, assuring that any student willing to expend the calories in one cookie can get a parking spot. Bill drove around for 45 minutes looking for a spot. Finally, in the bowels of our $9 million Spanish Renaissance parking structure, he found 5/6 of a spot, partially obstructed by a miscreant who had decided to take up 3 and 1/6 parking spots for his very large, slant-wise parked SUV. This miscreant needed those spots, you see, because if he took up only one spot, somebody might park next to him and dent his holy vehicle. Bill looked the spot over, and figured with much back and forthing he could just squeeze his little hatchback into the spot. However, if he did, the big SUV would be trapped, unable to leave the garage. So, knowing his duty when he saw it, Bill inserted his vehicle in the little nook. With the truck on one side and the wall on the other, he had to crawl out the hatch in back to exit his vehicle. Bill was in class all day and returned to his car at dusk. The big SUV was still there. Then Bill realized what he had to do. He walked down the hill and took the trolley home. When he returned the next day the truck was still there, as it would have to have been, unless it had a dematerialization option, or the driver was willing to crush his little car, unlikely in one so averse to dents, and imprudent, given that Public Safety knew who he was, judging from the pile of parking tickets now gracing the miscreant's windshield.

I think of this story often, and it never fails to give me a warm feeling. I may never get the same chance to so heroically defend property rights and the natural law of parking, but it is an example we can all at least try to live up to.

AND this from Tom Bell, taking another step towards a theory of parking.

At least one email suggests we really need to do something about student parking, at least if we ever want them to make gifts to the law school when they are rich lawyers.

January 24, 2005
Hillary is scaring me
By Mike Rappaport

First, she is a hawk on the War on Terror. Then, she talks about the importance of bringing God back into the public square. And now she is moving to the center on abortion. Not only is she running for President, but she could win.

That is, at least, how I feel some of the time. Then, I remember that I thought Hillarycare was inevitable in 1993-1994, and we were saved. My only fear is that she has learned something since then.

The Real Culprit in Iraq
By Mike Rappaport

An interesting column by Stephen Schwartz:

Many Arab Sunnis in Iraq clearly want to [accept the new reality and reconstruct their lives on the basis of equal common citizenship.] But they are caught between two fires. On one side, they fear that the Shias will wreak revenge upon them. On the other, they are called on to join the so-called "resistance" that faces American and coalition weaponry. But aside from the physical risk of supporting the terrorist faction, the Arab Sunnis in Iraq have learned from the experience of the people of Fallujah, who briefly lived under the dominance of Abu Musab al-Zarqawi and his Wahhabi bandits, that a Taliban- or Saudi-style regime controlled by the latter will terrorize the rank and file of the Arab Sunnis as much or more than it will strike against the Americans and their coalition partners.

It is for that reason -- real fear of the terrorists by ordinary local Sunnis -- that Iraqis have been replaced in so many of their operations by so-called "foreign fighters," many of them Saudis. As I reported in the New York Post and The Weekly Standard not long ago, 20-year old Ahmad Sayyid Ahmad al-Ghamdi, perpetrator of the December 21 bombing of the American mess hall in Mosul, which killed 22 people, was the son of a Saudi diplomat. Indeed, I have since learned that al-Ghamdi was carrying a Saudi diplomatic passport when he committed his terrible act.

Western media and governments hesitate, for unfathomable reasons, to pay close attention to the role of the Saudis in the Iraqi fighting. But Western journalists of a liberal bent are especially hypnotized by the false paradigm of "U.S. invasion vs. Iraqi insurgents," when the basis of the conflict is very different. Rather, the Iraqi terror offensive has its roots in homicidal Wahhabi, i.e. fanatical Sunni, hatred of Shia Muslims.

Europe's "Remorse" toward the Jews
By Maimon Schwarzschild

Mark Steyn has it right, unfortunately, about this week's official commemorations in Europe of the Nazi-era Jewish holocaust:
According to a poll by the University of Bielefeld, 62 per cent of Germans are "sick of all the harping on about German crimes against the Jews" - which is an unusually robust formulation for a multiple-choice questionnaire, but at least has the advantage of leaving us in no confusion as to how things stand in this week of panEuropean Holocaust "harping on". The old joke - that the Germans will never forgive the Jews for Auschwitz - gets truer every week.

If most Germans don't feel guilty about the Holocaust, there's no point pretending they do. And that's the problem with all this week's Shoah business: it's largely a charade. The European establishment that has scheduled such lavish anniversary observances for this Thursday presides over a citizenry that, even if one discounts the synagogue-arsonists and cemetery-desecrators multiplying across the Continent, is either antipathetic to Jews, or "sick of all the harping on" [about the holocaust], or regards solemn Holocaust remembrance as a useful card to have in the hand of the slyer, suppler forms of anti-Semitism to which Europe is now prone.
Read the whole thing.

Marriage, Schmarriage (Part VI): Will Same-Sex Marriage Really Affect Anything?
By Gail Heriot

A couple of my correspondents have expressed doubt that same-sex marriage will have either of the effects that I've talked about in my earliers posts here, here, here, here and here.

Tom Chatt, for example, who sent me an extremely thoughtful response favoring same-sex marriage, expressed doubt that it will have the upside effect of dampening promiscuity among members of the gay community and suggested instead that only committed couples will enter into such marriages. (I liked his teasing example: "'Oh honey, why don't we get married? True, we'll have to give up promiscuity, but we'll get tax breaks!'")

On the other hand, Brett McDonnell, whose interestng and fair-minded response I mentioned in my last post, concentrated his doubt on my downside effect--that traditional marriage will be harmed by the introduction of same-sex marriage. He asks: "Is the idea that straight people will see gay men being unfaithful to their husbands, figure it's OK, and go out and do the same? ... Is that really a plausible story?"

(Somehow this reminds me of "Broken Windows," James Q. Wilson and George L. Krelling's 1982 article in Atlantic Monthly. They suggested that scrubbing away graffiti, cleaning up trash, and fixing broken windows might reduce crime in high-crime neighborhoods. Many people, used to the modern cliche that you shouldn't "sweat the small stuff," considered all this counter-intuitive and teased them with scenarios like this: "Sluggo, that new flower p0t in the park is so pretty that I think I'm going to give up my life of crime!" But Wilson and Krelling stood their ground, and the evidence now suggests that they may well have been right. (See
Fixing Broken Windows by George L. Krelling and Catherine M. Coles.))

The truth is that there are eight million stories in the Naked City. And at every given moment thousands and thousands of people are facing tough questions for which they plausibly could go either way. Should I get married? Should I get divorced? Should I tell my husband what I really think of him? Should I punch my brother-in-law in the nose for what he did to my sister? And the ever popular, should I give this damn thing one more try?

Can the legal recognition of same-sex marriage (which fair-minded people agree is likely to have higher rates of break-up than traditional marriage, particularly traditional marriages that involve children) affect some of those decisions? I can't see how it could fail to. To me, the interesting issue is which effects will dominate, not whether there will be such effects. Consider these hypotheticals:

****Susan may be the sort of woman who has a hard time committing to anything, but once she does, she tends to do well. Her problem is that when she is considering whether to marry her boyfriend, she can't help but remember what a terrible time her older brother had when he was divorcing his same-sex spouse. In the end, it's just enough to give her cold feet.

****Beth learns that her husband has been spotted in a restaurant stroking the shoulder of a female colleague. It's not clear that he has actually cheated on her (and in fact he hasn't--yet). Her instinct is to confront her husband and ask for an explanation (and in this case her instinct would have been correct, since it would have snapped her husband back into reality, before things had gone too far). But she confides in a gay friend who advises her that he keeps his own same-sex marriage intact by ignoring minor indiscretions. Only half-convinced, she reins herself in somewhat and simply asks her husband where he had lunch that day. When he answers that he had lunch at his desk, she stares darts at him, but he is too thick to notice. Undeterred, his relationship with his colleague gets out of hand.

****Bob's marriage to Carolyn has generally been a happy one, both inside and outside the bedroom. Bob, however, has always regarded himself as a potential bisexual. He has never acted on this interest of his; ten years ago he considered it, but decided that getting caught by anyone would be the most humiliating thing that could happen to him, even if Carolyn and the children never found out. Lately, however, he's noticed that such things just don't seem to carry with them the same social stigma they used to, in part because of the legal recognition of same-sex marriage. This time he decides to go through with it.

Similar hypotheticals can be imagined for the upside argument that same-sex marriage could somehow "domesticate" the gay lifestyle. Of course, Tom is right that few gay couples would be thinking, "Hey, now that the law has changed, we should give up our promiscuous lifestyle and get married!" But that's not the point. The idea is not that a proposed change in the law could move some people from A to Z. Instead, such a change could move a lot of people a little bit--from A to B, B to C, and Y to Z. A previously committed couple may get married and even hold a big wedding to mark the occasion. Their best friend, who is not so committed, but on the whole would prefer it, is inspired by their example and tries a little harder to find someone special. And he succeeds. His neighbor has an adult son who is into the bathhouse scene, and she steps up her criticism of him. The son responds not by giving up the bathhouse, but by joining to local gay youth club that goes bowling on Friday nights (one of three nights a week he previously used to frequent the bathhouses.) Gradually, he is pulled away from the most promiscuous lifestyle into to one that is somewhat less promiscuous--a small victory for Mom, but still a victory.

Well, that's just six stories. There are 7,999,994 more to tell. When we add them all up, which of these effects--upside or downside---will ultimately outweigh the other? As I suggested in my earlier posts, I don't know. I am just another of Burke's error-prone mortals "with the puny resources of individual reason to sustain" me. But to me, that's precisely why caution is in order.

Did She or Didn't She? Now We'll Never Know for Sure
By Gail Heriot

In addition to Johnny Carson's, the other big obit today was that of Rose Mary Woods, loyal secretary to Richard Nixon. In a sense, Woods, like Carson, was a staple of American comedy. But it was a very different sense; she was the brunt of jokes about how she claimed that she had "accidentally" erased part of the White House tapes while trying to transcribe them. The conclusion at the time (and indeed of history) was that she had done it on purpose probably at her employer’s behest–a conclusion I subscribe to. But when I consider how many ridiculous mistakes I have made with my #^%$! computer over the last decade or so, I figure that I’d better be a little humble about that conclusion. Or as Oliver Cromwell is said to have put it in a somewhat different context, "I beseech you, in the bowels of Christ, think it possible you may be mistaken."

January 22, 2005
Marriage, Schmarriage (Part V): Same-Sex Marriage and Lesbians
By Gail Heriot

In my last installment in this Marriage, Schmarriage series (for earlier posts see here, here, here, and here), I said that maybe my next post would be the last. No such luck. I've gotten lots of thoughtful responses, so I have to try to do justice to at least some of them. If you haven't been keeping up with the series, I urge you to go back through the earlier posts to get a sense of what I'm trying to say. As I am sure you are aware, Gentle Reader, this is a bit of a touchy subject with some people.

Brett McDonnell (U. Minn), who is visiting here at USD this semester, urges me not to ignore lesbians in my argument. He writes, "The very same factors that make gay men more promiscuous than straight couples should make lesbians less promiscuous." Brett is, of course, quite right. Both the theory and the empirical evidence suggest that lesbian couples are, if anything, more monogamous than straight couples. The issue of lesbian marriage is thus arguably different, and I can easily imagine thoughtful people coming to a different conclusion concerning it.

But in the public mind the issues are bundled together--in part because most members of the public haven't given it much thought, in part because the same-sex marriage movement and the gay movement generally have presented the issue as a bundled one, and in part because modern constitutional law doctrine would probably make it impossible to unbundle them. As a result, if lesbian marriage were legally recognized, same-sex marriage between men would follow almost immediately (and vice versa). A person who believes that same sex marriage between women by itself would, all others things considered, be a good thing, but that same-sex marriage between men would be a bad thing, must somehow balance the two against each other and arrive at a single conclusion.

Is that a slippery slope argument? If so, it's worth pointing out that it has been repeatedly said that Burkean conservatism and slippery slope arguments are antithetical. And, in a limited sense, that's true. Much of Burke's argument is that cultural context and nuance matter. If he was able to distinguish between the American and the French Revolutions, then Burkean conservatives ought to be willing to distinguish among issues that are similar but not identical, even when other people can't or won't.

But that argument applies only when the Burkean conservative is himself or herself the policymaker. It seems perfectly reasonable for the Burkean conservative to take the position that when two issues cannot realistically be separated from each other in the minds of the ultimate decisionmakers (which in a democracy will ordinarily be the voters, though in our democracy is sometimes the judiciary), it doesn't matter if they are arguably distinguishable. Fate has put them together.

RI conservative blog
By Tom Smith

Check it out. A conservative blog in one of bluest states in the union.

More World Courts?
By Maimon Schwarzschild

Good online debate about international courts like the International Criminal Court -- and about the ambitions of international law generally -- between Eric Posner (law professor at the University of Chicago) and Oona Hathaway of Yale Law School. Posner is a sceptic:
The tribunals established to adjudicate crimes committed in the former Yugoslavia and Rwanda are farcical. They have consumed enormous resources while convicting a tiny number of wrongdoers and (especially in the case of the Yugoslavia tribunal) providing a platform for those wrongdoers to rally their followers and stir up a xenophobic reaction at home. The granddaddy of international courts, the International Court of Justice, is rarely used, frequently ignored, and justly derided.
Hathaway accuses Posner of "putting the interests of the US before all else", but Posner replies
Why is it that international legal scholars always assume that someone who is skeptical about international institutions must put the "interests of the United States above all else"? In none of my writings have I argued that the U.S. should pursue its interests at the expense of other nations. What may distinguish me from others is that I am willing to take American positions as seriously as those of other countries. The common assumption among international law scholars that the U.S.—out of sheer perversity, or because it, uniquely among all major nations, misunderstands its own long-term interests—stands in the way of the proper development of international law (Kyoto, the ICC, etc.) is one of the most discreditable aspects of this field of scholarship.

As an empirical matter, I do think that the U.S. does put its interests above all else, but that in this respect the U.S. is no different from any other nation. The role of the academic is not to berate the U.S. for pursuing its interests, but to understand how self-interested nations can most effectively cooperate with each other.
I think Posner has the better of the argument altogether, but Hathaway makes her points forcefully (and civilly) in favour of the more conventional international law ethos. Read the whole thing.

January 21, 2005
Bush and Worldwide Liberty
By Chris Wonnell

What are we to make of George W. Bush's Second Inaugural address yesterday, in which he committed the United States to a policy of advancing liberty everywhere in the world?

On the positive side, there is just no question that the world is better off when decent countries believe in themselves than when they don't. The post-World War I angst among the leading democracies left a power vacuum to be filled by the horrors of Nazi Germany and Imperial Japan. And of course the post-Vietnam pacifist malaise facilitated the murder of a million or two in Cambodia and the Soviet invasion of Afghanistan.

On the other hand, there's a tension, almost a contradiction, in the Bush message. He says, quite rightly, that democratic countries, being accountable to ordinary citizens, tend to be more peaceful. But this applies to the United States as well as to the countries we might want to democratize. A democratic America won't be enthusiastic for endless humanitarian military interventions, so the risk is that we will soon vote in a real dove who will put an emphatic end to such adventurism. The predictable result of such a course would be more aggression by the wicked.

I was also a little bit puzzled by the conception of "liberty" Bush wanted to promote. He clearly had in mind the rights to vote and to dissent, which are indeed excellent things. But for the average person, economic liberty is at least as important and seemed to receive very little attention. Indeed the President sounded an FDR note with his discussion of social security and positive freedom. This conception threatens to blur the distinction between freedom and unfreedom, since every law makes it possible for somebody to pursue an action she couldn't have pursued otherwise. Social security may be a sensible policy, but I would prefer that it be acknowledged as a paternalistic intervention into our rights of free contract and therefore as a limitation on liberty. We don't want to be so enthusastic about liberty that we call everything we like "liberty" and lose the meaning of the word.

San Diego County: Not as Crazy as You'd Think
By Gail Heriot

According to a recent study at UC-Berkeley, residents the County of San Diego have a lower rate of mental illness than one would expect given the County's demographic and socio-economic characteristics. I am, of course, deeply proud of my fellow San Diegans.

On the other hand, the California counties with the highest rates of mental illness were San Francisco and Alameda (which includes Berkeley). (James Taranto points out for the Best of the Web that San Francisco and Alameda counties are also the counties in which Kerry did the best in the recent election.)

Alas, however, there must be a flaw somewhere in the study, since Sacramento County came out looking pretty well-adjusted. And anybody who knows anything about California politics knows that just can't be true ....

January 20, 2005
Congratulations to Ward Connerly
By Gail Heriot

Congratulations to my friend Ward Connerly, with whom I worked on the Proposition 209 Campaign back in 1996 (and later on the Washington and Michigan initiative campaigns). The Lynde and Harry Bradley Foundation announced yesterday (Wednesday) morning that Ward will be the recipient of one of four 2005 Bradley Awards for outstanding achievement.

Tonight, a group of us will be honoring Ward in San Francisco for his twelve years of service as a University of California Regent as his term comes to a close. Ward, this Bud's for you.

Marriage, Schmarriage (Part IV): Edmund Burke Weighs In
By Gail Heriot

When I left off last time, I was saying that there are two conservative arguments that can be made on same-sex marriage--one in favor and the other against. Both can begin with the (undeniable) fact that gay men on average, though not necessarily in individual cases, have many more sexual partners than do straight men or women and the (more contestable, but in my view probably correct) view that in general this promiscuity is not a good thing.

Talking about this issue can be hazardous, so I’d prefer that you go back and read my earlier posts here, here and here. That way if you’re unhappy, you will at least be unhappy over what I’m actually saying, rather than some mistaken notion of it. But to recap: One could argue that the recognition of same-sex marriage will promote promiscuity by removing some of the traditional stigma that once attached to a gay lifestyle, hence increasing at the margin the number of people who engage in that lifestyle (or in a promiscuous heterosexual lifestyle). One could also argue that extremely high rates of infidelity and divorce are likely to result from such marriages, which could end up having negative effects on the already-embattled institution of traditional marriage. The problem is that the opposite argument is plausible too. Allowing same sex-marriage might, to some extent, "domesticate" gay relationships and dampen gay promiscuity by causing a larger number of gays to commit to monogamy. Dampening that promiscuity might also have an indirect effect on straights.

It's worth noting, however, that while one "can make" a plausible argument in favor of same-sex marriage from the standpoint of social conservatism, one doesn't often hear it actually being made (except as part of a Right Coast law professor's musings). And I don't think this is because conservatives are stupid or motivated by ill will. I think it’s something more fundamental to the conservative psyche (and I believe on the whole quite reasonable).

Nobody knows with anything approaching certainty which of the many plausible predictions about the effects of a change in public policy on this issue would actually come true. And anybody who thinks he does is a fool. What we can say is that marriage is one of the most fundamental institutions in our culture. It has a lot to do with how we rear our children (at least when we do it well), how we care for the elderly and infirm, how we pass on property from one generation to the next, and how we love and live our lives. And in the past several decades, it has been under considerable pressure. Rates of illegitimacy and divorce have been high. Celebrity marriage have helped to bring the institution into disrepute. From the standpoint of many conservatives, therefore, the issue is, “Should we risk even the possibility of further harm?”

Amy Wax (U. Penn.) presented a paper at USD's recent Conference on the Meaning of Marriage, which she has tentatively titled, "The Conservative's Dilemma: Social Science, Social Change and Traditional Institutions." The article is still in very preliminary form, so I won't quote from it, but I will summarize one or two of her points as I understand them. She argues that the conservative position against same-sex marriage has not been well-represented in the newspapers, magazines or the academic literature, but that a conservative in the tradition of Edmund Burke might articulate it this way: It is precisely because we can’t be sure of the consequences that we should avoid tinkering with the traditional concept of marriage. (Or as Burke put it, when man "tinker[s] impudently with [tradition] ... [he] is left awfully afloat in a sea of emotions and ambitions, with only the scanty stock of formal learning and the puny resources of individual reason to sustain him." Since we cannot know in advance what effects our social experiments will have, we had better be careful. Incremental change should be strongly preferred over more radical approaches.

All of this seems reasonable to me. When it comes to institutions as important and potentially fragile as marriage, we need to be cautious about the winds of change and humble about our ability to judge how they will affect us. For me, that means that a heavy burden of proof must be upon those who advocate the legal recognition of same-sex marriage, especially when they attempt to do so via the courts rather than the ballot box.

Does that end the matter? Not quite. As I suggested in my original Marriage, Schmarriage post, there are less sweeping approaches that make sense to me, which I will elaborate on in my next (and perhaps final) post on same-sex marriage. In the meantime, don’t touch that dial ....

January 19, 2005
Speaking of Same-Sex Marriage...
By Gail Heriot

... a federal judge in Florida just upheld the 1996 Defense of Marriage Act. (Hat tip Anal Philosopher.)

New Blog on California Appellate Decisions
By Mike Rappaport

Our colleague, Shaun Martin, has started a new blog on California Appellate Decisions. In contrast to many law professors, Shaun really knows a great deal about the practice of law -- and he actually reads all of the California appellate decisions. His blog consists of commentary on those decisions. It is quite interesting and should be of some use to real lawyers. Here is one of his posts:

Karli Bobus is 16 years old and blows a .02 -- about one beer -- when she's stopped by the cops. (The officer testifies that she reeks of alcohol and is slurring her words -- hardly consistent with blowing a .02 -- but that's another story.) That's below the usual .08 limit, but Karli's under 21 (and hence the limit is .01), so they pull her license. Karli challenges the suspension, and at the hearing, she admits that her friends were drinking but denies that she drank anything. She nonetheless admits that she had a cold and had taken a capful of cough syrup.

I have no problem with the first two operative paragraphs of the opinion, which upholds the suspension on the ground the trial court could reasonably have disbelieved Karli and concluded that she had indeed been drinking with her friends. Done. But the opinion goes on and holds that, even if she hadn't been drinking, she's still guilty, because a capful of cough syrup is still an "alcoholic beverage" since, after all, it's a beverage that contains alcohol. So there.

Of course, if cough syrup is indeed an alcoholic beverage, this means that you violate the open container law if you have an open bottle of cough syrup in your car; indeed, anyone under 21 is guilty even if the cough syrup is closed and factory sealed! Justice Jones responds only that Karli wasn't charged with this offense, and that she'll "leave for another day the question of whether transportation of cough syrup might support the specific offenses Bobus has identified." But it's the same definition of "alcoholic beverage" for all of these statutory offenses; if cough syrup is an "alcoholic beverage" for one, it's also an "alcoholic beverage" for the others!

Don't think it's just cough syrup, either. Tons of stuff has alcohol in it. Think of that next time you're driving down the road with your Strawberry Bananna Smoothie, which -- like so many other things -- is typically made with vanilla extract, which contains alcohol.

A bad, bad case.
The case raises important issues of textualism, but from my perspective Shaun is right even from a textualist perspective. There is an ordinary meaning of "alcoholic beverage" that excludes cough syrup. So Justice Scalia could have come to the same result as Shaun.

January 18, 2005
Marriage, Schmarriage (Part III): A Conservative Case For and Against Same-Sex Marriage
By Gail Heriot

Since I've already had two earlier posts (here and here) that have drawn criticism, I might as well go all the way and offend everyone–supporters and opponents of same sex marriage alike. Why else have a blog?

Let me start with the very politically incorrect topic of promiscuity. (Phew, I said it!) As I see it, promiscuity is the starting point for both a secular conservative case in favor of and a secular conservative case against the legal recognition of same-sex marriage. Gay men on average have more sexual partners than heterosexuals or lesbians. A whole lot more. The numbers differ by an order of magnitude, as my friend the astrophysicist would put it.

No, I’m not saying if you are gay that you are promiscuous. And no, I’m not saying if you are straight or lesbian that you are not promiscuous. (And mercy no, I don’t need to hear the story of your brother Ken and his ex-wife Tiffany.) I’m talking about averages. But, at least when issues of public policy are being discussed, averages matter.

Socio-biologists claim to understand all this. As they explain it, men, who can in theory father an almost unlimited number of children, have a natural tendency toward promiscuity as a reproductive strategy, while women, whose physical investment in bearing each child is great, are better off being picky about their mates and pursuing a strategy of monogamy. In heterosexual relationships, therefore, women are typically the ones to put the brakes on things. And among gay men, no one is there to serve that function. In the end, however, I don’t much care if the socio-biologists are wrong or right. For my purpose, it’s enough to know that gay men are on average significantly more promiscuous than both women and straight men.

“So what?” you may ask, “What’s the matter with sex?” And to be honest, you may be right. But the judgment of the ages has been that long-term promiscuity often leads to an unhappy life, to regret, and finally to a lonely old age and death–and that a few other people usually get hurt along the way. Don Juan is not a happy or sympathetic figure in literature, and neither are most of his fellow life-long libertines.

Can I absolutely prove that promiscuity leads to unhappiness? Of course not. There are limits to proving who is happy and who is unhappy and even greater limits to proving why. Social science can’t take you everywhere. These are among the reasons I would never dream of outlawing promiscuous conduct (or homosexual conduct). But that doesn’t mean that the traditional view is mistaken. And it doesn’t mean that I would oppose all non-coercive sanctions that might subtly influence people to walk the traditional straight and narrow.

For example, if I were a mother, I would consider it my duty to cajole, to nag and, in extreme cases when I thought it would be effective, even to threaten to disinherit my adult son or daughter if I knew he or she was engaging in seriously promiscuous conduct. On this, it wouldn’t matter if they were gay or straight. And if the neighbor lady were to give them the evil eye when she observes a different man or woman leaving their apartment every morning, so much the better. The world is not black and white. The fact that certain conduct ought not be prohibited does not by any means that it ought not be subject to more subtle sanctions. Sometimes it means that subtle sanctions are all the more important.

Some would say that the government (as opposed to the neighbor lady and me) should not play favorites among what philosophers call “conflicting visions of the good life.” So long as it’s not clearly and directly hurting anyone, conduct ought to be both legal and free from state influence, subtle or not-so-subtle.

But, to me, that seems both wrong in the abstract and not remotely the world we live in. Surely, when the Congressional Medal of Honor is awarded, the government is playing favorites between different visions of good conduct. Some people might regard an antiwar protester’s conduct as more praiseworthy than the military hero’s, but it seems odd (and probably in the end suicidal for the state) to take the position that it cannot choose to reward only the military hero. The same may go for other conduct that the state may wish to praise or even subsidize–including volunteering one’s time or spending one’s money on charitable activities. It would be odd to say that the state must also praise and subsidize those who spend their time and money betting on the ponies at the race track just because gambling is not actually prohibited.

Perhaps it ought to work this way: Conduct ought not be prohibited unless a strong case can be made for its harmfulness to third parties and the prohibition is applied evenhandedly. And sometimes the provision of benefits (or the imposition of fees) can be so large that the case ought to be treated as a prohibition. But lesser benefits and endorsements should be subject to somewhat lesser standards. The state should not be able to act whimsically by giving special recognition or small subsidies to people whose names begin with A-K, but it should not be held to the same standards of direct and provable harm (or benefit) that it would be if the conduct were being prohibited either.

All of this is a rather long way of getting around to say that it doesn’t seem categorically wrong for the state to engage in some policies that are designed to subtly influence people away from promiscuous conduct. That’s not to say that all such policies would be a good idea; most would probably be too heavy handed. But the legal recognition of marriage and the creation of certain tax incentives in favor of marriage do not strike me as obviously inappropriate or any more objectionable than tax incentives to home ownership. It’s important not to get overly puritanical about being anti-puritanical.

It’s fair to ask at this point which way all of this cuts when it comes to same-sex marriage. And I think the best answer is that it isn’t completely clear. On the one hand, one could make the argument that the legal recognition of same-sex marriage might promote monogamy among the gay population and hence conservatives interested in dampening promiscuity ought to support it, maybe even promote it. If gay men were given an extra incentive to enter into long-term, monogamous relationships, more of them might do it.

All that doesn’t strike me as obviously wrong. But the opposite argument is also plausible–that legal recognition of same-sex marriages might in the long run have negative effects. First, by removing some of the subtle social and political pressures not to be gay, those men with bisexual tendencies who might otherwise have identified themselves as primarily straight and entered into a monogamous relationship or marriage might just start identifying themselves as primarily gay and not enter into a monogamous relationship. Second, same-sex marriage may inevitably have higher rates of faithlessness and divorce than opposite-sex marriage (particularly opposite-sex marriages with children) and this might further damage the already-embattled institution of marriage. Conservatives should therefore oppose same-sex marriage.

I freely admit that my conservative case against same-sex marriage is riddled with the word “might.” But that doesn’t resolve the issue, since my conservative case in favor of same sex marriage is riddled with the word “might” too. Which forecast is right and which is wrong? Where does the burden of proof lie? And is there anything same-sex marriage advocates (or opponents) can do to improve the appeal of their arguments? What role, if any, should civil unions play here? Or same-sex marriages that do not enjoy legal recognition?

Fortunately for you the reader, this post is already much too long, so I can beg off until at least tomorrow. But stay tuned for Part IV ....

The Great Palestinian Hope -- Or is there anyway to avoid the need for a civil war?
By Mike Rappaport

Abu Mazen, the new Prime Minister of the Palestinian Authority (PA), has instructed the Palestinian security forces to stop the attacks on Israel. The question, though, is whether this instruction will be followed by real actions taken by the PA over time. In the past, it never has.

Unless the PA actually takes action against these attacks, there is no point in Israel negotiating with the PA. The attacks come from groups that are not willing to compromise with Israel. So an agreement with the PA that gives them land for peace will result in land for war unless the PA is willing to stop the attacks. That was Oslo. The PA must, at a minimum, take serious actions before Israel negotiates. (Of course, the failure of the PA to act would still allow Israel to take unilateral actions that it believes benefit it, such as withdrawing from Gaza and building a security fence.)

If the PA does act against Hamas, Islamic Jihad, Al Aksa, then this is very likely to result in a Palestinian civil war. This may be one of the principal reasons why Abu Mazen (with the support of many other countries) is reluctant to pursue this course. But there is no alternative. It is unfortunate, but it would appear that a precondition to Israel wisely negotiating with the PA is a Palestinian civil war, which the PA wins. Short of such a war, Israeli-Palestinian negotiations would be likely to result in another Oslo disaster.

Little Draftees
By Tom Smith

Today I got an email from Kathy, one of my best former students. She is married to Greg, a Marine officer in command of a helicopter battallion being deployed to Iraq next month. She has a good idea, explained in her email below. If you are associated with a group with kids (school, scouting, little league, whatever) who would like to support military children with a card, please email me and I will pass your message on to Kathy. If you have a blog, why not link to this post? If Kathy's idea spreads to other armed forces units, I think that's so much the better. Just to repeat something Kathy says, this is not about politics; it is about supporting the kids who bear heavy burdens when their dads or moms go in harm's way for the rest of us.

My husband's squadron, HMM-264, will be deploying to Iraq in about a
month. They'll be based out of the Al-Ansar Air Base south west of Bagdad, and their area of operations will include Falluja and Bagdad. They'll be leaving behind about 50 school-aged children, (as well as many little ones) for the seven months or so of the deployment. I'm writing about those children.

The squadron has a number of organizations that have generously expressed interest in "adopting" the Marines when they deploy -- which means that they will write letters and send packages to the single Marines, who might not have someone writing to them regularly. I've got the idea of trying to set up something similar (but less involved) for the school-aged children in the squadron, who will be left behind.

Why do we want to do this? We want to help the kids to get through the deployment. They are our little draftees -- they didn't sign up to serve their country, but they are -- doing without their daddy or mommy for more than half the year, because that's what the president asked of them. When Greg was in the original Iraq war in 2003, it made my daughter Sophie feel proud and special when people would thank her for what her daddy was doing. I'd like to make sure every child in our squadron can get that kind of support this time around.

What specifically am I asking? I'd like to find about fifty groups --school classes, youth groups, girl or boy scout troops, whatever -- each of whom would adopt one child from our squadron. We can try to match them up by age. And we'd like the adopting group to plan on sending a few cards, over the period of the deployment, that's all. We'd like the first card to come mid February, shortly after the dad or mom has left. Any other cards, its up to the group. The card could say anything you like -- thank you, we're thinking of you, anything -- just the fact of receiving it, and the signatures from other children, we feel will go a long way. This is absolutely not intended as a political activity, and it is one that anyone could participate in regardless of their position on the war. America has a good system, whereby people sign up to serve the country in the military, and stand ready when asked to go as the president directs. Its an act of sacrifice and love for the country when they do that, and its an act of sacrifice for their children too.

If you can help me find such groups, if you are connected to such groups yourself and could contact them for me to find out if they'd be interested,I'd be very grateful. If not, I apologize for filling your in box with yet another email -- it seemed the most efficient way to go, since we've got a relatively short time frame here. If you have a group that wants to help us, please email me their email address, and I'll take it from there.

January 17, 2005
When We Said Women Were Different, We Meant Only in Good Ways
By Gail Heriot

Uh, oh! It looks like Harvard University President Larry Summers may be in a bit of trouble. As described by the Boston Globe, Summers suggested at a gathering of scientists and mathematicians that "innate differences between the sexes could help explain why fewer women succeed in science and math careers." At least one scientist walked out on him.

It's curious. At least since Carol Gilligan's In a Different Voice: Psychological Theory and Women's Development, "difference feminists" have held that there really are innate differences between men and women. If that wasn't considered politically incorrect (and indeed it was considered cutting edge feminism instead), it's not obvious to me why Summers's comment should be considered worthy of walking out on. He didn't say that the average woman is dimmer than the average man. He didn't even say that fewer women are in the top fraction of 1% in scientific and mathematical skill. He just said that we cannot assume that just because women are somewhat less well represented in the highest-powered science and math positions in the nation that this is due to discrimination. There may be other explanations. To illustrate he gave the example of his daughter, who apparently treated her t0y trucks as dolls, despite her parents belief that they were striking a blow for gender neutrality by giving trucks to her. The average woman may simply have somewhat different interests.

Gilligan was, if anything, a good deal more radical. She suggested, for example, that the average woman is by nature more cooperative than the average man, who tends to be more competitive. If true, one would have to expect that to have a negative effect on women's willingness to engage in the lifelong intense competition necessary to establish oneself as a player in the world of big science and math. Even if women had exactly the same level of other talents and interests necessary to succeed on that world, one would expect somewhat fewer women than men in these jobs. Are we supposed to believe that there are innate differences between men and women that cause the average woman to differ somewhat in temperament from the average man, but which do not in any career choice work to women's disadvantage? That seems unlikely to me.

January 16, 2005
Marriage, Schmarriage, Part II
By Gail Heriot

My friend and soon-to-be-colleague David McGowan wrote to me about my previous post:

"I don't quite grasp the significance you see in the idea that a
same-sex couple could declare themselves married. That is true, but
what follows from it? To me it would be a frivolous act, akin to
declaring yourself a senator, which you could do so long as you did
not defraud anyone. Perhaps some would see it as an act of protest.
Either way, it would be a legally hollow statement."

I don't consider it frivolous at all (and I'm surprised a libertarian like David does). A couple is married when they have promised to love each, spend their lives together, and order their lives for the benefit of the two of them, and that promise has been made publicly. If the state were to get out of the marriage business (or even outlaw marriage!!), you can bet there would still be marriages. Unlike the office of Senator, the institution of marriage is by no means simply a creature of the state.

Current law does not forbid same-sex couples from making marriage promises to each other or from even holding themselves out as a married couple. It simply denies legal recognition to that marriage. They won't get the benefit of court intervention, applying certain one-size-fits-all dissolution rules if things don't work out. They won't get the marital deduction on their income tax. It may be true that a marriage that isn't recognized by law is "legally" hollow as David suggests, but so what? That doesn't make it actually hollow. It is filled with whatever meaning the parties to that mutual promise bring to it.

How many brides and grooms walk down the aisle thinking about the protection of the divorce law or the tax code? I hope none; most are too busy thinking about the promises of love and faithfulness (and occasionally about whether the caterers and photgraphers have arrived on time). And if you were to tell the happy couple before the wedding that state was going to change its marriage code to make exit easier or to get rid of the favorable tax treatment or even to get out of the marriage business altogether, how many marriages would be called off? Not many, I don't suppose. Why do they do it? They do it for that promise. They do it because marriage is not just a promise whispered in the night, but a public declaration, and thus more likely to be kept. The State of California and indeed the United States of America can dry up and blow away, and the couple will still be married. Until death.

David analogizes the case to Bradwell v. Illinois (1873), but I think the comparison is inapt. In Bradwell, Illinois prohibited women from practicing law. Had Myra Bradwell insisted on doing so anyway, she would have been thrown in the pokey. That's not the case here. A same sex couple can do as it pleases with no such fear. And at least under California law, the civil union laws guarantee that the couple that (if they go through the motions of the civil union) they will get the equivalent legal protections available to married couples through the back door.

Sure, right or wrongly, many people will disapprove. But as I suggested before, neither same-sex couples nor anyone else is entitled to approval.

David made some other interesting comments too that I hope to get to soon. Right now, I must grade some more exams.

Marriage, Schmarriage
By Gail Heriot

At USD's Conference on the Meaning of Marriage this past weekend, my friend and colleague Larry Alexander asked why so many people are willing to tolerate or even endorse civil unions between same-sex couples and yet strongly oppose same-sex marriage. Here in California (and I suspect in some other places too), the legal rights and obligations that arise out the two institutions are precisely the same. The fight is thus essentially over the use of the word "marriage" Or, as Larry put it, what if we were to call same-sex unions "schmarriage," but otherwise treat opposite-sex and same-sex unions the same? Would that be fine with a significant number of those who oppose same-sex marriage?

Well, maybe it would be. But I don't think that's evidence those people are acting irrationally. Symbols matter, especially in a debate that is about symbols. And I see the gay marriage debate as primarily about symbols--and only secondarily about marriage.

First of all, it's important to remember that the debate over same-sex marriage is not about same-sex marriage at all. It's about the legal recognition of same-sex marriage. There's nothing to prevent a same-sex couple from simply declaring themselves married right now, this minute, anywhere in the United States of America. Indeed, there's nothing to prevent the couple from having, as Shania Twain would put it, "the white dress, the guests, the cake, the car, the whole darn thing." If they want to, they can start their own church to sanctify the union. After all, this is America. The only problem is that the law won't recognize the marriage. But that doesn't mean the couple and their friends and family won't.

Strangely, however, not that many same-sex couples engage in this sort of "self-help." (Though some do, and I'll give them some respect for that.) When the City of San Francisco started granting marriage licenses to same-sex couples a little while ago, surprisingly few of the couples who lined up for blocks said that they already considered themselves married and they were just seeking to have the marriage legalized. They just weren't married.

Why? There are two possible answers that would make sense to me. First is that it's not the marriage itself that they are interested in, but rather the legal benefits that flow from the marriage. If so, legal recognition is crucial. But if that's the case, one would expect that civil unions that provide identical benefits would be just as good. Somehow, however, for large numbers of same-sex couples, they wouldn't be. Why not?

I think the answer is that for many same-sex couples, a legally-recognized marriage is desired precisely because they regard legal recognition as an endorsement by the community of their relationship. It says, "The State regards this relationship as a worthy one that should receive support." The same is true of the push to have mainline churches recognize same-sex marriages. It's not the bare fact of a religious marriage ceremony that is central, since some church, somewhere could easily be found (or created) to endorse same-sex marriage. The desire is to have a major church endorse same-sex marriage as a way of endorsing same-sex relationships generally. It's just plain better to be able to say that the Presbyterian Church (USA), the Methodist Church or (perhaps even better) a very large church like the Roman Catholic Church, with millions of members, endorses your "life style" than it is to say that the "Tiny Church of the Castro District" endorses it. And, for many, having the church in which they were reared in is important. What being asked for is approval. It's an undertandable thing; we all crave approval.

The problem is that other people's approval is the one thing they're just not entitled to. Nobody is. Approval comes voluntarily or not at all. And rightly or wrongly (and I'll write on that later), most Americans do not wholly approve of same-sex relationships--at least not at this time and quite possibly never. That doesn't mean that they don't like gays or lesbians or that they want to ban same-sex relationships. And it certainly doesn't mean that they want to turn gays and lesbians into lamp shades (One friend of mine recently suggested--with what I hope and believe was a certain degree of hyperbole--that that significant numbers of people do). But it does mean that they have reservations about public declarations that same-sex relationships are just as desirable as opposite-sex relationships. And recent elections suggest that they are not willing to be corraled into such a declaration.

That doesn't mean that some of them, perhaps many of them, might not be willing to compromise with ... uh ... schmarriage ... I mean civil unions, which do not put same-sex relationships on the same symbolic footing with opposite-sex relationships and hence do not call upon them to endorse same-sex and opposite-sex unions as equally desirable.

But I'll have to get back to this later ....

January 15, 2005
Hot Button!!!
By Gail Heriot

Some things make me proud of the University of San Diego School of Law, and the Institute for Law and Philosophy's Conference on the Meaning of Marriage, a two-day conference that ended a few minutes ago, is one of them. It proves that academics can discuss hot button issues the way that ... well ... academics are supposed to--fairly and civilly.

The participants were law professors, philosophers and political scientists with strongly held views on every side of the gay marriage issue. I think it's fair to say that everyone in the room felt some degree of personal stake in the national debate over gay marriage. No one boiled over. Not an uncivil word was spoken.

You're probably thinking that I must be pretty easy to please if I can walk out of an academic conference smiling because the participants didn't come to blows. Well, it also helps that the papers that were presented--by Brian Bix (U. Minnesota), Robin Wilson (U. Maryland), Janet Radcliffe-Richards (University College, London), Christopher Wolfe (Marquette), Nomi Stolzenberg (USC), Richard Arneson (UCSD), Chesire C. Calhoun (Colby College) and Amy Wax (U. Penn)--were uniformly interesting and informative. And it helps that the discussion was stimulating. But, yes, it's true that the absence of incivility is a significant part of why I am happy.

Sadly, I've been to quite a few academic conferences where things weren't so congenial--usually at conferences on affirmative action, which I do a lot of. Here I'm not talking about cases in which non-academics in the audience (students, members of the community) call the speakers "racist" and other choice epithets. I'm talking about cases in which the epithets are being hurled by fellow academics. Last year, for example, I spoke a conference at which a certain well-known left-of-center law professor (no I won't name names; there's no point) harangued a certain well-known right-of-center law professor, claiming that his arguments were offensive and insensitive. In my humble opinion, the accusation was utterly groundless and designed to rattle the more conservative professor. And in that it was somewhat successful. It's a real shame that an academic would stoop to such tactics. Conservative views are already underrepresented in the academy; by jumping on those who express them, those who disagree ensure those views will be even more underrepresented.

I'll blog on some of the substantive issues discussed at the Conference on the Meaning of Marriage (gay marriage, polygamy, etc.) soon, so stay tuned ....

Martial arts madness
By Tom Smith

It's either blog about something, or go back to reading exams. I have been mentally composing a blog post about some martial arts stuff for some time, and since it is now just about half baked, it is ready. This is the usual law and economics standard.

Our and many other martial arts have a principle called "ki" or "chi" that is pretty cool. It means something like energy or life energy, and it sounds like exactly the sort of new age baloney that gives martial arts a bad name. But it doesn't seem to be. I don't know exactly what it is, but it seems to work. It is related to, or maybe just the same thing, as various visualization techniques that lots of athletes use. You can try it at home! Extend your arm, locking your elbow, with your wrist resting on your partner's shoulder. Now your partner should reach up and try to "break" your elbow by pulling down on it. You try to stop him by keeping your arm straight. If your partner is strong, you may find it quite difficult to keep your elbow straight. Now try again. This time, pick an object, like something on the wall, or the wall itself. Before you begin, feel the thing to get its texture. Now, hold your arm out straight, imagining you are reaching for the thing. Feel its texture in your hand (or imagine you do). Keep trying to extend your arm to the object as your partner tries to break your arm. You will probably find you are much better able to resist. Or maybe not. Maybe your kung fu is not strong, grasshopper. Yet it seems to work for me. Weird. I asked a more advanced student in my Christian martial arts dojo if there was anything spooky or spiritual or whatever going on here. Nope, he said. But it could be Christians don't give proper weight to Eastern mojo of various kinds.

You can also do this with weight lifting. Do curls, but imagine there is a strong elastic band between your wrist and your shoulder (besides the ones that run through your elbow). You would have to work to keep the weight from popping up to your shoulder. It seems to make a difference. Climbing, there is a rope attached to a harness pulling you up. I mean when there actually isn't. As you get better at this, you ki technique becomes more advanced. Climbers who specialize in bouldering, some of them, are said to get spookily good at this stuff. It can greatly improve your striking, making punches much more devastating. You probably shouldn't be killing people, so you can practice it breaking boards. You ki through boards by sort of sending your mind ahead of your hand and sending it all the through your target. Your target is just a little bump along the way. It actually works. I chopped through two of those black belt breaking boards on top of each other, which is actually not that big a deal, except for me, one night when my ki was strong for some reason. This is the equivalent of reading three exams. Another thing that really helps is that the target you send your mind and then your fist to is the back of your target, so if you are punching a guy in the throat (don't unless you have to kill him) your goal is to hit his spine as hard as you can. All that tissue in front of it is just a bump along the way. Or more realistically, the back, not the front, of the punching bag.

There are lots of explanations for how this works. The prevailing explanation in my dojo seems to be that you are disinhibiting the opposing muscles of your motion. So when you punch, you are using your triceps and pecs and who knows what else to extend your arm, but your biceps is actually holding you back. Your force is the outward force minus the inhibiting force. Get rid of the latter and you increase your force. Maybe. Unpronouncable Russian Guy, author of The Naked Warrior, an overpriced, corny, but interesting fitness book, espouses some weird theory of "neurological activation", in which muscular and nervous structures are somehow activated by exercise to be able to attain greater states of arousal by practice. An application of this is, he says, that you should never, never exercise to failure, as this only teaches your nervous system how to fail. You should always end just rarin' to do one more rep. I have tried this, and I can't say I notice any difference, but maybe I need to persist. There seems to be a bit of theme of arousal in formerly communist exercise theory; there are stories of East German cyclists getting themselves sexually aroused before sprints I will not relate in detail. Sounds like a thesis for a phys ed ph d candidate somewhere. Of course, I don't see how any of this will help me learn how to surf, but I least I can really hurt anybody who makes fun of me for my efforts.

In the next part 127 of my pointless ruminations on this and related topics, I will explain to loyal readers how to think about the odd phenomenon of American professional wrestling, how it fits into martial arts more easily than you might think, and why it should not be regarded as a blemish upon the face or torso or whatever of fighting arts, but just an extreme end of a certain spectrum. Stay tuned, and remember to spend at least 20 minutes every day watching a movie or TV show with a fight scene in it.