Below, co-blogger Quaker asks why those who believe that a gestating fetus is a rights-entitled human being don't all believe in criminal pubishment for mothers who procure abortions-- "What makes this crime different from all other crimes?"

I confess that seems to me a very odd question for those who support abortion rights, like Quaker, to ask. Presumably what makes abortion different, in the eyes of those who are pro-life but don't believe in maternal criminal liability, are the very powerful interests in bodily integrity, autonomy, mercy to the desperate or the weak, and so on-- the very arguments that pro-choicers make on the political scene every day!

See also Jeff Rosen's essay in What Roe v. Wade Should Have Said:

The Texas law holds doctors, but not pregnany women, liable for performing abortions, and the Chief Justice suggests that the failure to hold women liable for abortions undermines the state's claim that it is devoted to fetal life. ... The truth is that many Americans who believe that life begins at conception also believe that it would be cruel to punish women who are desperate enough to perform abortions on themselves, and cruel also to punish women criminally for seeking illegal abortions from doctors. The laws are designed to deter doctors from performing abortions and therefore to make abortions more difficuclt to obtain; at the same time, many citizens believe that women who manage to obtain abortions anway should not be imprisoned for their decision. This position may not satisfy a canon lawyer-- it may nor be cconsistent, in other words, with an absolute devotion to fetal life in all circumstances-- but it is a perfectly rational way of balancing a devotion to fetal life with other moral concerns, and it is a balance that many of our citizens ... embrace.

The recent debate over abortion over at Mirror of Justice reminds me of our past discussion on that topic here at Crescat. Reading Prof. Garnett's posts on the subject, I still find myself in the same place I was before.

I agree that the legal system treats different acts of homicide differently, that the degree and kind of punishment for homicide can vary based on the victim, the circumstances, and the mens rea of the perpetrator. I agree with Prof. Garnett that we don't have to treat a putative homicide of an eight-week old fetus exactly the same as that of an eight-year old child, or an eighty-year old woman. What I don't understand is how this answers the basic argument that people like Jonathan Rauch are making.

The issue is not whether a woman who obtains an abortion should be punished equivalently to another person who commits a homicide, but whether that woman should be punished at all. What makes this crime different from all other crimes?

I´m sitting in an internet cafe in Reykjavik, near the end of my stay here in Iceland. I´ve got a lot to blog about, but I´m going to leave that for when I get to Paris, so that I can unload and link to some pictures. It´s an amazing, wild, place, completely unlike anywhere else I´ve ever been. It´s also expensive in a way that´s hard to believe until you see it, but that´s quite a different matter. It´s worth the extortionate price.

Anyway, one of the big themes of my trip so far is the surprising extent to which Iceland resembles the United States. They like Coca Cola. They drive huge cars. And theirs a country music radio station that reaches my host´s 120 person town, in the far north of the country. But one thing in which the Icelanders distinguish themselves is their almost complete devotion to peace. Despite being Vikings, they are distinctly not a martial nation. And in nothing is this more evident than how most Icelanders believe they were converted to Christianity.

Remember, of course, that most countries with old conversion stories usually have some sort of dramatic explanation for why they rejected the old gods. Usually, in fact, either Jesus or God turns up Himself and in reality, there´s at least some sort of king through which that Divine Providence is executed. The Armenian conversion story, for example, contains both of these, as does that of Byzantium. Who can possibly forget Constantine? And there´s almost always some sort of violence.

The Icelandic conversion story is completely different. Sometime in 999, says one of the narrative sagas, some Christian missionaries came to the country. They convinced some of the local chiefs to convert, and so when the annual meeting of the chieftans occurred at the law rock (an extraordinary cliff in the middle of the southeastern icelandic plans), there was division among Icelanders. Hoping to end the division, the law speaker [(that is to say the effective president of the alþthing (parliament)] asked everyone whether they would accept his decision about religion, whatever it turned out to be. They all agreed. So he went away and slept for a night, covered in a blanket. And the next morning he appeared on the law rock, and announced to everyone that he had decided the Christian God was more convincing. And that was it. No one in any of the stories suggests that this decision was anything other than one of convenience. As the law giver explained, according to the saga, it was better if all Icelanders shared the same law and religion. So this new one seemed good enough for that. And everyone went away and became Christian.

There´s always been some question, apparently, about whether this story can be believed or not. But the archeological evidence is clear. Sometime around 1000, everyone in Iceland suddenly set aside þorr, their old God, and adopted Jesus. In my friend´s town, for example, it seems clear that they just moved from an old temple to a church, and don´t even seem to have bothered to burn down the old place. No one records any war, or executions, or burnings, or anything. Just like they accepted foreign sovereignty in the mid 13-th century, which I´ll talk about at some point, they just gave up a religion that didn´t seem to make sense anymore. It´s a bizarre, and fascinating, story. And yet completely typical of the Iceland I´ve just gotten the smallest taste of.

Law-review articles are regularly ridiculed and criticized for their heavy footnoting, allegedly required by the student editors who are mysteriously permitted to run the asylum. [For an alternate account of the history of the legal footnote, see this post by Nate Oman.] And it is definitely true that law journals have and require much more footnoting than most other forms of academic publishing.

But often lost in criticism of this phenomenon is the distinction between footnote numerosity and footnote length. Long, substantive footnotes can make a paper nearly unreadable, as the reader is forced to negotiate two papers at once, one above the line and one below it. But even a machine-gun fire of short citation-only footnotes interfere with the eye minimally if at all; their biggest effect is to minimize the amount of text that can appear on a page.

So I'm a little bit confused about what people have against the latter sort of heavy-footnoting. Legal scholarship is made to be read at least by practitioners with little time, frequently little knowledge of the background law at hand, and an eagerness to minimize time and money spent on research. And because legal theory rests frequently and necessary on technical and textual details, it is more important and more crucial to meticulously cite one's sources.

Yes, it's ridiculous to demand a peppering of id. citations when an article discusses a single Seinfeld episode, but not riduclous at all to demand that every episode discussed be cited, in case some Seinfeld ignoramus (like me) decides to double-check the author-- a requirement at which many authors (although laudably not the linked one) bridle.

So, I see the objection to long, ponderous, digressive footnotes-- an old writing vice of mine. But what's so bad about requiring numerous footnotes, so long as they are concise?

Ted Frank:

The tort system is meant to deter wrongdoing; the mistake of the left is the increasingly successful attempt to make the main purpose compensating the injured . . .

Tort focuses more on compensating the victim; criminal law focuses more on punishing the person who committed the crime.

From Rita:

I [told him] that his calculating which Metro car to get into at Metro Center so as to be closest to the escalator when he got off at the Foggy Bottom station was a sure sign of encroaching dronedom.