Regardless of what one thinks of the gay rights/defense of marriage debate, this much should be unassailable:

“If marriage is redefined, its connection to organic bodily union and thus to procreation will be undermined. It will increasingly be understood as an emotional union for the sake of adult satisfaction that is served by mutually agreeable sexual play. But there is no reason that primarily emotional unions like friendships should be permanent, exclusive, limited to two, or legally regulated at all. Thus, there will remain no principled basis for upholding marital norms like monogamy.

A veneer of sentiment may prevent these norms from collapsing but only temporarily. The marriage culture, already wounded by widespread divorce, nonmarital cohabitation and out-of-wedlock childbearing will fare no better than it has in those European societies that were in the vanguard of sexual ‘enlightenment…’

Candid and clear-thinking advocates of redefining marriage recognize that doing so entails abandoning norms such as monogamy. In a 2006 statement entitled Beyond Same-Sex Marriage, over 300 lesbian, gay, and allied activists, educators, lawyers, and community organizersincluding Gloria Steinem, Barbara Ehrenreich, and prominent Yale, Columbia and Georgetown professorscall for legally recognizing multiple sex partner (polyamorous) relationships. Their logic is unassailable once the historic definition of marriage is overthrown.”

– Robert P. George, Gay Marriage, Democracy and the Courts, Wall Street Journal, August 3, 2009.

When Professor George says that “norms such as monogamy” will be abandoned, I take him to be referring to the historically prevailing cultural attitude that sex is only permissible within a married relationship. I do not think, though perhaps I am wrong, that he means to say that non-traditional (e.g., polyamorous, temporary, or otherwise non-monogamous) relationships will replace monogamous relationships as the “norm.” Although non-traditional relationships will doubtless increase, they will increase only insofar as there is demand for them, and something in the human makeup seems to drive the great bulk of us towards a desire for monogamy. Instead, I take Professor George to mean that non-traditional relationships will become “normalized” in the sense that they will be accepted and the stigma against them removed or reduced.

Viewed in this light, the comments quoted above seem unassailable. The question is not whether this will happen, but simply whether it has already happened (as a consequence of the divorce, cohabitation, and out-of-wedlock child bearing he mentions) and, if so, whether it can or should be reversed.

(As always, I do need to add the caveat, per Stanley Fish, that there is not and never has been a “principled basis” for upholding marriage norms, if by “principled” one means a basis which is distinct from the substantive values one holds and wishes to impose on the world.)

The QOTD:

“None of this is to imply that new professionals are left without goals. Ironically, however, the primary goal for many becomes, in essence, getting compensated sufficiently for sidelining their original goals… Once the professional adopts this new, quantitative measure of success, the system has him in the palm of its hand, for he maximizes his compensation by working hard to further the goals of his employer… And work hard he does - 12-hour or longer workdays are standard for many young professionals. According to the Wall Street Journal, “in some investment-banking and law firms, seven-day, 100-hour work-weeks aren’t uncommon.” At First Boston Corporation, a large international investment banking firm headquartered in New York City, “Young associates stay late about three nights a week. The other nights they’re out by eight or nine,” the chairman of the corporation’s recruiting committee tells the Journal.

Moreover, in spite of his marathon effort and to his employer’s further delight, the young professional feels that he must not be working hard enough, because the compensation never quite seems to satisfy him; the feeling of “having it all” eludes him. In fact, his efforts are futile, for no amount of income or status can make whole a social being who has abandoned his own intellectual and political goals. The situation tends to be self-perpetuating. The professional’s priority on compensation inhibits him from developing and pursuing his own intellectual and political goals, because the independent thinking necessary to do that is incompatible with the mind-set necessary to do best for his employers and therefore do best in the rat race. Furthermore, the rat race is an all-encompassing effort: the young professional works the week like a sprint and is left with only a few hours of leisure time out of the week’s 168 hours. To prepare his mind adequately for the professional work ahead, he must spend his hard-won free time “working at relaxation,” certainly not reflecting. Until the professional assigns highest importance to developing and advancing his own political goals, serving the system will be not just his job, but his life.”

- Jeff Schmidt, Disciplined Minds, pg. 121-23.

• Why red light cameras don’t work, and actually make us less safe.

• Alternate data streams in NTFS: hide files inside other files.

• Bookmarked for later:Why I need a kitchen scale.

Paul Kedrosky offers sanity in these troubled economic times:

“Repeat after me: The trouble is not with short-sellers. The trouble is not with short-sellers. The trouble is with an over-levered financial system built on a house of cards comprised of under-collateralized toxic paper that was applauded all the way up by “housing is the American dream” nutters who couldn’t see that vast expansions in thinly-traded credit are a path to economic ruin. Focusing on the short-sellers will lead to completely wrong and counter-productive non-solutions to the current crisis.”

If you need a layman’s primer on the current economic disasters, Freakonomics offers a concise summary aimed at the general reader which is extremely helpful.

Rising bass star Esperanza Spalding describes her experience at Berklee:

“You get these knots inside you. And you find all these places that you’re vulnerable where you weren’t vulnerable before. And it’s all because you can’t play a line as nice as somebody else. Who cares anyway?”

Sounds just like law school to me.

Here’s some news to brighten your day: the RIAA lost one of their lawsuits recently:

In what appears to be the first known case of its kind, the RIAA has been ordered to pay a defendant nearly $70,000 in attorney fees and costs after unsuccessfully suing for copyright infringement…

[T]he RIAA filed suit against Deborah Foster in November 2004. Her adult daughter Amanda was added to the complaint in July 2005 when it was indicated that she had access to the internet account. Because Amanda failed to defend herself against the complaint, the RIAA won the case against her by default.

The ruling against Deborah was then amended to allege she “contributorily and/or vicariously” infringed on copyrighted recordings…

On July 13, 2006 the Oklahoma court ordered the RIAA’s claims against Foster be dismissed with prejudice and ruled she was eligible to be awarded attorneys fees. The court was skeptical that “an internet-illiterate parent, who does not know Kazaa from a kazoo” could be liable for copyright infringement committed by someone else using her internet account…

The court eventually whittled the award down to $68,685.23 in a 14-page document which itemized her expenses.

Via Infamy or Praise.

I’m finally getting around to reading Jack Balkin’s Law and the Humanities: An Uneasy Relationship. From the abstract:

Law [school] remains far more like a divinity school — devoted to the preservation of the faith — than a department of religion — which studies various religions from multiple perspectives. To the extent that the contemporary disciplines… view law externally or in ways inconsistent with its professional orientation, they are merely tolerated in law schools rather than central to legal study…

Ironically, law’s thoroughly rhetorical nature, which strongly connects it to the traditions of the humanities, places the contemporary disciplines of the humanities at a relative disadvantage. Law uses rhetoric to establish its authority and to legitimate particular acts of political and legal power. Law’s professional orientation pushes legal scholars toward prescriptivism– the demand that scholars cash out their arguments in terms of specific legal interpretations and policy proposals. These tasks push legal scholars toward technocratic forms of discourse that use the social and natural sciences more than the humanities. Whether justly or unjustly, the humanities tend to rise or fall in comparison to other disciplines to the extent that the humanities are able to help lawyers and legal scholars perform these familiar rhetorical tasks of legitimation and prescription.

• Your home is not a very good investment.

• Judge Bill Mathesius of New Jersey has written a scathing, and hilarious, attack on the cult of the imperial judiciary. Don’t miss the footnotes. Via Above The Law.

• Musings from the Hinterland has a great series of posts on the economics of health care.

• Jane Galt has an interesting post on weight loss. I’ve struggled with my weight for my entire life and, because of this, I have to consciously monitor my daily calories. Like Jane, my view is that the significantly overweight simply view food in a fundamentally different way than the naturally thin:

  Like almost everyone who doesn’t struggle with their weight, I have been guilty of thinking that fat people simply lacked willpower. But when I actually think about, say, the roommate with the binge eating problem, it’s readily apparent that there must be something else going on. I once burst in on her as she spooned out the last of a half-gallon of ice cream that had not been in our freezer just hours before. “What a pig!” is the common upper middle class reaction. But that doesn’t make much sense. I don’t manfully restrain my many urges to eat a half-gallon of ice cream; the very idea revolts me. I’m not sure I could force myself to do so on a bet. So I can’t really credit my behaviour to my superior exhibition of the bourgeois virtues of self restraint, since I am being restrained by lack of desire, not force of will. That she did want to eat that much ice cream seems to indicate that there is something very different about her that has nothing to do with virtue. It isn’t just eating, either; fat peoples metabolisms are notably slower when they lose weight than someone who finds it easy to keep their weight at the same level.

• Which is why I hate people.

Diagnosis.

How to use Google to find mp3’s.

Florida’s huricane “insurance” plan is one of dumbest things I’ve heard in weeks. (Mississippi’s response runs a close second, however.)

In the Agora notes that stupid speed limits cost lives:

Many traffic laws are inacted because of a misconception by state and federal legislators. They believe that reducing the speed limit will slow the speed of traffic, while raising the speed limit will cause an increase in the speed of traffic, and thereby increase accidents. Their belief is misguided. Colorado’s Department of Transportation already seems to understand (pdf) and notes that “Before and After” speed studies show that there are no significant changes in vehicle speeds or accidents after speed limits are changed…

The Cato Institute’s Stephen Moore reinforces this view in a 23 page paper titled “Speed Doesn’t Kill” (pdf), as does the British Columbia Automobile Association. Moore notes that 33 state raised their speed limits after the federal government’s repeal of the 55 mph law in 1995. Because of this, traffic death rates dropped to a record low level in 1997. In addition to saved lives, these more sensible laws offered an economic benefit estimated between $2 and $3 billion per year.

And finally, here is Stephen Colbert on US-China relations (via peer-see). For the record, Cobert is a comedian: I obviously don’t endorse his actual position.

Here are some links, in no particular order, that I’ve been meaning to mention for a while:

First, some new happiness research: “Boosting the frequency of sex in a marriage from once a month to once a week brings as much happiness as an extra $50,000 a year.” This conclusion comes from a paper written by David Blanchflower, an economist at Dartmouth who also serves on the Bank of England’s Monetary Policy Committee, and Andrew Oswald of the University of Warwick. The same paper also concludes that “the happiness maximizing number of previous sexual partners in a year is 1.”

Next: Greg Mankiw links to a new CBO paper reminding us that domestic labor bears about 70 percent of the burden of the corporate income tax, while domestic owners of capital bear slightly more than 30 percent of the burden. Remember that the next time you hear someone rave enthusiastically about the value of increasing taxes on large corporations: the corporate tax is mostly a hidden tax on labor.

In other news, I was glad to hear that Francis Beckwith was recently granted tenure at Baylor University. Beckwith is an Associate Professor of Church-State Studies and the Associate Director of the Institute of Church-State Studies at Baylor. He’s also a conservative Christian thinker who promotes accommodation on church/state issues, opposes abortion, and believes that teaching intelligent design in the public schools is constitutional. As a result of these beliefs, he was originally denied tenure at Baylor, despite his excellent CV. As Ed Brayton argues:

There are plenty of legal scholars that I disagree with completely that I cannot imagine being denied tenure at any university (Robert Bork, Robert George, etc). It’s not enough to say “I think they’re wrong, therefore they don’t deserve tenure”; by that standard, no one would ever get tenure. Like those men, Beckwith is a prominent advocate for his position and regardless of whether I agree with that position, by the standards of legal scholarship, they would generally be granted tenure on the basis of their scholarship. And I fear for academic freedom if we’re going to make disagreement the standard for deciding who can and can’t be fired. So on the whole, I think it’s probably the right decision to make.

Next up, Stuart Buck quotes an article by Michael Pollan reminding us that government regulation may make the recent E. coli/spinach problem worse:

Yet perhaps the gravest threat now to local food economies — to the farmer selling me my spinach, to the rancher who sells me my grass-fed beef — is, of all things, the government’s own well-intentioned efforts to clean up the industrial food supply. Already, hundreds of regional meat-processing plants — the ones that local meat producers depend on — are closing because they can’t afford to comply with the regulatory requirements the U.S.D.A. rightly imposes on giant slaughterhouses that process 400 head of cattle an hour. The industry insists that all regulations be “scale neutral,” so if the U.S.D.A. demands that huge plants have, say, a bathroom, a shower and an office for the exclusive use of its inspectors, then a small processing plant that slaughters local farmers’ livestock will have to install these facilities, too. This is one of the principal reasons that meat at the farmers’ market is more expensive than meat at the supermarket: farmers are seldom allowed to process their own meat, and small processing plants have become very expensive to operate, when the U.S.D.A. is willing to let them operate at all. From the U.S.D.A.’s perspective, it is much more efficient to put their inspectors in a plant where they can inspect 400 cows an hour rather than in a local plant where they can inspect maybe one.

So what happens to the spinach grower at my farmers’ market when the F.D.A. starts demanding a Haccp plan — daily testing of the irrigation water, say, or some newfangled veggie-irradiation technology? When we start requiring that all farms be federally inspected? Heavy burdens of regulation always fall heaviest on the smallest operations and invariably wind up benefiting the biggest players in an industry, the ones who can spread the costs over a larger output of goods. A result is that regulating food safety tends to accelerate the sort of industrialization that made food safety a problem in the first place.

And finally, several months ago, the Southern Baptist Convention elected Frank Page as its new President. Over at In the Agora, Seth Zirkle noted that:

Page’s election comes just moments after the SBC promulgated its new position on alcohol, namely that he who toucheth the chalice drinks to his death. Page, in addressing the alcohol question, appeals to an “overall” witness of Scripture that gives a negative appraisal of strong drink. Overall, since there is no single passage in Scripture that explicitly condemns the consumption of alcohol, just drunkenness (1 Cor 6:10).

I can only assume that Page found the scriptural prohibition on alcohol in the penumbra of the text. Heh.

Michael Dukakis and Daniel Mitchell, both prominent progressives, argue that the minimum wage should be raised. Why? Because raising the minimum wage will force poor immigrant workers out of a job and out of the country. (Alex Tabarrok points out that this was originally the explicit purpose of the minimum wage.)

Eric Crampton explains why donating to a “charity run” is foolish.

MIT Economist Amy Finkelstein argues that “the spread of health insurance between 1950 and 1990 may be able to explain about half of the six-fold rise in real per capita health spending. ” (via Marginal Revolution)

David Bernstein correctly notes that, by forcing law schools to encourage racial diversity, the American Bar Association may have cost affirmative action advocates their victory in Grutter.

Jonathan Adler notes that “one of the perverse effects of the Endangered Species Act is that it encourages private landowners to make their land inhospitable to potentially endangered species.”

There is a theme here.

Everything that can possibly be said about Hamdan and Common Article 3 has, by now, probably been said better by someone else. So I will simply summarize my objection to the Court’s interpretation of Common Article 3 by pointing you to the ICRC Official Commentary on Article 3, which includes an extensive discussion of the negotiations which created Article 3, and then noting an argument that Marty Lederman made in another context:

One should be suspicious of any argument about congressional intent that doesn’t reflect, well, any legislator’s intent. Handy new canon of statutory construction: Interpretations that would come as a shock to all 518 legislators who voted for a bill are disfavored.

As a corollary, I’d say that interpretations of a treaty which would come as a shock (even if a pleasant shock) to everyone who negotiated that treaty should also be disfavored.

This is old news by now, but it’s still worth noting:

“The price tag on Harvard’s 2005-2006 spasm of outraged feminism just got a little bit bigger. The Wall Street Journal reports today that Harvard has lost upwards of $390 million in donations since ousting former president Larry Summers. Even to Harvard that’s a big number, amounting to two-thirds of the total funds raised in 2005… Among those who have cancelled or reduced their contributions are Oracle’s Larry Ellison, real-estate and newspaper mogul Mort Zuckerman, banker David Rockefeller and Pequot Capital’s Byron Wien.”

Scotusblog reports that the Hamdan decision has been handed down:

The Court held that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today’s ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons “shall in all circumstances be treated humanely,” and that “[t]o this end,” certain specified acts “are and shall remain prohibited at any time and in any place whatsoever”—including “cruel treatment and torture,” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment.

Setting aside the political and military implications of this decision for a moment, and acknowledging that I haven’t yet read the opinions, let me just say: huh? Common Article 3, as I understand it, applies by its terms only to non-international armed conflict (e.g., civil war or domestic terrorism). How does the court apply this to Al Qaeda? Global terrorism is the very epitome of international armed conflict, isn’t it?

Further comments will have to wait until I’ve found a copy of the opinions.

Judge Michael McConnell, writing in the Harvard Law Review, discusses Justice Breyer’s Active Liberty. His conclusion:

Attention to the theory of active liberty thus may lead in a direction Justice Breyer did not intend. He set out to describe and defend an approach to constitutional interpretation that would not be bound by text, history, and tradition, but also would not be based solely on whether the consequences “are good or bad, in a particular judge’s opinion” (p. 120). In many ways, the attempt is admirable… But ultimately, his effort falls short. On the one hand, he asks judges to place greater emphasis on effectuating the people’s will. On the other hand, he asks them to give greater emphasis to purposes and consequences than to text, history, and tradition. But in republican government, text, history, and tradition are the objective manifestations of the people’s will. Justice Breyer’s insistence that active liberty provides the linchpin for constitutional interpretation, examined carefully, offers more support for the approach he criticizes [originalism/textualism] than for the approach he espouses.

via Stuart Buck.

For some strange reason, I keep remembering this scene in the Devil’s Advocate, where Al Pacino, who plays the senior partner of a large law firm (and also, incidentally, Satan) offers a job to a bright young associate, played by Keanu Reeves:

Keanu Reeves: Are you offering me a job?

Al Pacino: I’m thinking about it. I know you’ve got talent. I knew that before you got here. It’s just the other thing I wonder about.

Reeves: What thing?

Pacino: Pressure. It changes everything. Some people, you squeeze them, they focus. Others fold. Can you summon your talent at will? Can you deliver on a deadline? Can you sleep at night?

Reeves: When do we talk about money?

Pacino: Money? That’s the easy part.

It’s 11:30 on a Friday night, you’ve just returned home from work, and the first thing you do is sit down at your home computer and check your work email account, just in case.

The QOTD, on the contradiction that lies at the heart of the law (as “the law” is taught in most law schools):

Crudely put, the liberal dilemma is as follows: The main vehicle of liberal reform in the United States since World War II has been the judiciary, and the judiciary, with the exception of a brief period in the mid-1960s, has consistently implemented reform against, rather than in collaboration with, state and federal legislative majorities. It is not surprising that a project of liberal… legal theory is to show that this judicial contribution to the substance of both private and public law is democratically legitimate because it furthers the rule of law, rather than merely legislating judicially.

But, as Gary Peller and William Eskridge have suggested, the liberal critique of conservative legal formalism, from Holmes through legal realism, extended by critical legal studies, has dramatically undermined academic faith in the possibility of judicial neutrality in hard cases…

Existentially, liberals with passionate commitments to specific judicial reforms, particularly in the areas of race and gender, have an interest in believing that these decisions were legally as well as politically and morally correct. If the judges “shouldn’t have” or “couldn’t legitimately” do these things, if the decisions were judicial legislation, then we “should have” gone on with the regime of de jure racial segregation until the gerrymandered state legislatures decided to abolish it in response to majority sentiment…

It has been obvious to liberal legal theorists, I speculate, that as present and potential rulers through the courts, they have an interest in the ability of the courts to command obedience and induce changes in moral sentiments. Any explanation of why the Warren Court did the right thing that accepts a strong form of the realist and postrealist critique of judicial legislation makes the people seem like dupes of legal mumbo jumbo that is just a mask for the imposition of the liberal ideological agenda. Such an explanation is not a good explanation. It is not good because it delegitimates this form of liberal political power for the future, while unilaterally abandoning the demand for judicial neutrality as a means of keeping today’s conservative judges and left-fringe activists in check.

– Duncan Kennedy, A Critique of Adjudication, pp. 113-115.