Well, the midnight hour approaches and so ends my guest tenure. I'd like to thank Will and everyone here at Crescat Sententia for letting me post and I'd like to thank everyone who sent me emails. I'm sorry I haven't been able to respond to all of them. I've had a blast at the ball, but alas, my blogging coach now turns back into a pumpkin. If you enjoyed my posts, I hope you'll come visit me at reg rats.

If you happen to have a spare $30,000, you can buy your child this toy and if that hasn't broken the bank, perhaps you can toss in $20 grand for this. Or you could buy about three real cars for yourself...

While giving a quick check to see how the New Orleans Times-Picayune was covering the Louisiana gubernatorial race, I came across this interview from last Friday with former four-term governor Edwin W. Edwards, EWE to the newspaper headlings and "the crook" to everyone else:

Edwards Unbowed, Unbroken
"Had he decided to run and were he not serving a 10-year prison term for fraud and racketeering, former Gov. Edwin Edwards believes he would surely trounce the two candidates vying for the governorship.

"'If I had run for governor with the group that is running today, I would have ended up winning,' Edwards said, brandishing his trademark confidence in an interview with CBS News that aired Thursday.

"Edwards made the comments during a jailhouse interview that aired just five days before he completes his first year in a federal prison in Fort Worth, Texas.

"Asked if he still professes his innocence, Edwards replied: "I never would say I was innocent of everything. I simply say I was not guilty of what I was charged with." He was convicted in May 2000 of corrupting the riverboat casino licensing process."

Neither Blanco nor Jindal's staff had any statement in response to Edwards's claim.

Ah, Edwards, others may be more honest than you, but they lack your panache. And your other, successfully avoided in the 3rd term, indictments for mail fraud, obstruction of justice, and bribery for sales of hospital certificates. And your deals with Eddie DeBartolo (owner of the San Francisco 49ers until things got shady). You're missed by those of us who read the newspaper but no longer live in the state.

Sorry, Will, I can't take any credit for Judge Posner agreeing to answer Howard Bashman's 20 Questions. Still very cool, I look forward to it.

But dang it, I'd hoped with enough time and great answers to the 20 Q like we've been getting, Crescat would be able to get the Judge. Now I guess we'll have to get the scoop on How Appealing by getting a Supreme -- Bashman's, after all, are for the appellate judge. To the SC: Hello out there if you or any of your clerks are reading, we'd love to have you. Hey, I can dream, can't I?

Sara Butler thinks Jacob Levy and I are coming out too strongly in favor of mockery, though I suspect it hurts every bone in her anti-gender-studies body to do so. But I think mockery is a great part of discourse-- especially religious discourse, but not only. Mocking laughter can be the last refuge of overwhelmed minorities, the first volley of assault on orthodoxy, and any number of things in between. Lest I seem over the top, I'll explain.

Take, for example, a mockery near and dear to my heart: the parody-blog Assprat Pretentia. As many other bloggers have noted to me, the whole enterprise is pretty cruel and pretty dreadful-- mockery at its lowest common denominator. On the other hand, it's flattering that anybody thinks this blog is worth mocking. Mockery is part of taking things seriously. People mock Catholicism all the time. They mock Wicca much less.

Is "Assprat" largely mocking for his/her own sake? I have no idea. But I know that I'm pretentious at my best and condescending at my worst. Having people like Assprat mock me in the blogosphere, and having some other people (you lived in Broadview Hall, and you know who you are) mock me in the real world helps keep me on guard, and hopefully keeps me closer to pretension than to condescension. So regardless of the intent of the mocker, this mockee takes that mockery to heart.

As an example of "mockery . . . done for the benefit of observers rather than the mockee" Sara offers up my summertime post on how not to give a policy presentation to your peers. It's not a perfect example of the kind of mockery that Professor Levy was defending, because it might cross the line between mocking a person and mocking their beliefs. But I don't think so. Making fun of somebody because they are condescending, are inconsiderate, or wear sandals with a suit to a formal presentation (for example) is different (and better) than making fun of them because they have a big nose, dark skin, or red hair. Indeed (and this is a key point) making fun of somebody doesn't preclude liking them, and it might not even preclude respecting them.

In particular, as Professor Levy points out, mockery has a special role to play in religion. Thanks to the role of faith, logical analysis is crippled in discussions of religion. If you decide to take the word of the Bible, Koran, or Torah on faith, then mockery is one of the only tools the non-believer has left. If you think something is just silly and illogical, all that you can really do is point out that it's silly and illogical, and mockery is usually the most literarily compelling way to do that.

For a more complicated discussion of this and related issues, particularly the relationship between humor and morality, read Ted Cohen's book on Jokes. If Aristotle's "Comedy" weren't lost to the world, it might say the same thing.

Mockery is important because it gives a feeling of solidarity among the aggreived, because it's often an effective way to draw attention to a left-field attack on an established tradition, and importantly, because mockery is often true. Sometimes people make assertions so silly that a logical reply just seems inappropriate. Mockery is often our way of saying that the gulf is so wide that we haven't yet gotten to the classroom or debating table. It's worth remembering that we once settled these disputes with swords instead. (And as I listen to her hearing, Justice Janice Rogers Brown has just announced that she's going to take the semi-racist cartoon that mocks her as an "unwitting compliment to me" rather than focusing on its "vicious motivations".)

But all of this rambling somewhat ignores Sara's punch line, a question:

...is mockery really an effective means? Having my beliefs mocked has never led me to give any of them up. People who are mocked, it would seem to me, rather than becoming more reflective about their beliefs are probably just going to dig in their heels and stop listening to you. Mockery and derision are far more likely to poison than spark any sort of reasoned exchange in that it automatically makes one person feel defensive.

Richard Posner, Amanda's boss and formerly mine, has just agreed to answer some questions for Howard Bashman (and if we're lucky, Howard Bashman will soon be answering some questions for us). Amanda, is The Judge's participation your doing?

Professor Stephen Bainbridge e-mailed me his excellent post on smoking bans and private property rights. Here's a taste:

Externalities sometimes justify government intervention. If I run a factory that spews pollution into the air, the damage to my neighbors and the environment is part of the overall social cost of running my factory. Because I don't bear those costs, however, I have no incentive to reduce the pollution my factory generates. By adopting appropriate regulations, the government can force me to internalize the cost of pollution, which is a fancy way of saying that the government can force me to take those costs into account when I make decisions.

The mere existence of an externality does not justify legislation, however. In a free society, with limited government and respect for private property rights, at least two conditions must be satisfied before government intervention is warranted. First, my actions must in fact produce external costs. Second, there must be a market failure -- that is, people must be unable to solve the problem without government help.

Read it all.

UPDATE:

Professor Bainbridge responds to a question of mine here.

I, like Will, found myself largely in agreement with Sasha Volokh's rebuttal to Dahlia Lithwick's argument against the right to (badly) represent oneself in court. But at the risk of endangering my libertarian credentials, let me pick at the bold assertion at the heart of Volokh's argument: "... a right is no right at all if it can't be waived; a non-waivable right to life is a duty or a burden, not a right." Is this really true? Are inalienable rights simply incoherent?

I'm not so sure, and I think the answer is rather sensitive to how you define rights. My own broadly consequentialist view is that my right to X makes claims on people--place duties on them--in order to institutionally safeguard a vital interest I have in X. Now, typically these duties and claims (don't hit me, don't take my stuff) are directed against other people; it doesn't serve much use for me to be under a duty not to take my own stuff, and if I choose to inflict injury on myself, well, I probably have some reason for it.

But is it necessarily true that a right can never make claims against, or impose duties on, the right-holder herself? I don't think this follows, at least not if one takes the instrumentalist view I'm putting forth here. If what matters is protecting the vital interest at the heart of X, we need to know about what the relevant threats to X are before we can so easily dismiss the possibility of an inalienable right to X.

Let's take voting rights, for example. Now, the right to vote can be grounded in any number of possible justifications, but let's just look at the obvious one: the citizen's desire to have his interests represented. We're trying to decide whether or not a citizen's right to vote should come with duties attached on its use--ought you be permitted, for example, to sell your vote in exchange for a bribe? Most people would say no--that if vote-selling were allowed, the resulting equilibrium outcome would be against the interests of the vote-sellers (voting has a low private return but (comparatively) large externalities; assuming the poor are numerous and share some basic interests, each vote sold to the rich has negative externalities for the fellow-poor which are not captured in the selling price; the poor would be facing essentially a n-person prisoner's dilemma).

This argument can be generalized: if one is allowed to waive one's right to X, others will have an incentive to put you in bad positions--positions so bad that you will then choose to give up X in order to escape them. If you can't give up X--if we place the duty on you to keep it--no such incentive will exist. Now, we can perhaps avoid this by giving you a right that others not put you in such bad positions, but in practice this just isn't workable--there are just too many ways to put pressure on people for a legal regime based on "no crime without a law against it" to handle. This is, for example, the knock-down reason in favor of maintaining a non-waivable right to protection from parent-child incest: if children were allowed to waive it, abusive parents would quickly learn that all legal incest takes is clever agenda-setting. ("Daddy, I won't have sex with you." "If you don't, I'll divorce Mommy. And not pay for your education. And hate you forever." "Fine, I consent.") Are we really willing to say that inalienability makes the right to be free from parent-child sex incoherent?

None of which should be taken as evidence against the substantive conclusions in Volokh's piece--I don't really see serious strategic interaction problems with alienability of one's right to legal counsel. But as a general rule, when thinking about rights, such considerations can't be ruled out.

The medical term for the procedure referred to as partial birth abortion is intact dilatation and extraction. The American Medical Association describes intact D&X as:

...comprised of the following elements: deliberate dilatation of the cervix, usually over a sequence of days; instrumental or manual conversion of the fetus to a footling breech; breech extraction of the body excepting the head; and partial evacuation of the intracranial contents of the fetus to effect vaginal delivery of a dead but otherwise intact fetus.

Though the AMA concedes that it isn't the only medically appropriate abortion procedure and doesn't recommend its use unless "alternative procedures pose materially greater risk to the woman," it also states that "the physician must, however, retain the discretion to make that judgment, acting within standards of good medical practice and in the best interest of the patient."

The future physician in me thinks that physician discretion is an important issue not just because different techniques pose different risks to different women but also because physicians, like other practitioners of techniques, have varying degrees of comfort with their repertoire of skills. Though one physician may prefer a certain method and feel that it is medically indicated, another physician may be more comfortable with another method and his increased competency might affect the health outcome of the patient. Artificially limiting physician discretion through government regulation makes for bad medicine.

You can now access the video for the Senate Judiciary Committee's hearing on Janet Rogers Brown here. It's two and a half hours long, so I may not get a chance to listen to it until tonight (which would be late afternoon for you states-bound folk), at which point I'll attempt to resolve whether she's really as . . . confused as NPR made her sound.

As you've probably hears, the Senate passed a partial birth abortion ban. I can't tell whether they didn't include a health exception because they thought they could get Sandra Day O'Connor to vote for it anyway, because they thought O'Connor would be gone and replaced by a pro-life nominee before the bill made it to her, or because they didn't actually care whether the bill survived or not but wanted to engage in political signalling to pro-life or moderately anti-abortion constituents. (And of course, don't rule out the possibility that the bill could have the paradoxical effect of hurting anti-abortion jurisprudence. O'Connor could decide that it's worth sticking around longer to get a chance to save her decision in Sternberg v. Carhart, and if a democratic presidential candidate beats Bush, there's a non-trivial chance that either O'Connor or Rehnquist will retire before a Republican wins again. Still, I don't think it's likely that the ability to vote on a single case will make the difference in O'Connor's decision about when to retire, expecially since Roe is safe even without her vote.) Also, don't miss the possibility that the ban will fail on enumerated powers grounds. I'm actually not at all sure what enumerated power the bill is based on. Commerce Clause? 14th Amendment?

And, luckily, William Saletan writes in Slate to remind us that partial-birth abortions aren't really births. They're abortions.

I'm no fan of second-trimester abortions. They're horrible, and if you can avoid having one, you should. They can be particularly disturbing when they're done by extracting the fetus intact, in a manner that looks like birth. But they aren't births. (Read on)

Vice Squad's Jim Leitzel replies to Beth's and Sasha Volokh's thoughts on smoking bans. He basically comes down with us Libertarian-types, but makes the (fair) point that the biggest losers from second-hand smoke in the workplace are the people who work there rather than the customers (never mind that at some of the pubs around here there are customers who spend more time in the place than any of the employees do).

I appreciate the concern, and to the extent that such smoke limitations are in line with all the other worker health-and-safety stuff we already mandate, I suppose it makes some sense. Still, one starts to wonder . . .

Given that some people find smoke a great nuisance (or even a great health hazard, as we've discussed) while other people don't mind it at all, and some people find smoke a plus (these being the people who would like to be smoking), it seems like there's a market-based solution. Wouldn't we expect some businesses to allow employee smoking (while on the job), then specialize in hiring smokers, while other businesses disallow employee smoking and specialize in hiring anti-smokers? Those workers who are more flexible (willing to work with or without the smoke) could reap the tiny benefit of extra job flexibility, just as workers who are indiffierent to what hours they work have more options available to them by working night or days as available?

I don't mean to sound a call against all workplace regulations. Despite my strong Libertarian sympathies I understand that there were strong reasons to think about things like bans on child labor, or regulations on the amount of terrible toxins you can put into sausage, (though I'm still very skeptical about things like a maximum work week). But smoking, as I've noted before, is different from a lot of workplace hazards in that for a lot of people it's not a workplace hazard but a workplace benefit. Now, I don't smoke, but I think the rush to save non-smokers from the perils of voluntarily exposing ourselves to people who do smoke probably undervalues (drastically) the consumption benefit of cigarettes. Clearly it's good to have some jobs, restaurants, etc. that aren't clouded by tobacco smoke, but it's also important to have some where people can spew smoke freely.

I have a hunch that a market-based solution is more likely to accomplish that than a smoking ban. Maybe I'm wrong.

Those interested in catcalls (see Beth's post immediately below) are also directed towards Amy's post on catcalls from April (before she'd joined us over here; before there even was an over here for here to join), and the 4/16/03 post at Blue Light Reflections (since I can't find the permalink button).