Crescat
Sententia

As Crescat lacks comments and the writer of this post lacks a blog, it's going up under my name. A caveat: normally when a Miss Butler is referred to on this blog, the speaker has Sara Butler (of no relation) in mind. This Miss Butler is Laura Butler (relation: twin sister). Soon, as she explains, she'll leave this headache behind. She writes in response to my mention of her on the ongoing maiden name debate. -- Amanda

As someone who is about to give up her maiden name for her fiance's, I'd like to argue that there are plenty of non-oppressive logical and emotional reasons for my decision.

The folks at the new blog De Novo have yet another day in their legal education symposium up. It includes great pieces by Dahlia Lithwick, De Novo's (and Crescat's) own Jeremy Blachman, and others, which put to shame this offering by yours truly.

Sara Butler has stepped into the should-women-take-their-husbands'-names debate. She writes:

... ultimately, I think it's incredibly important for a family to have the same name. A family isn't just a collection of autonomous individuals, but shares a common identity. So, my thinking lately, is that I'll pull a Hillary when I get married and keep my last name as a middle name: Sara Butler X.

The Katie Roiphe article that I linked to earlier today contains a small discussion of the Lucy Stoners — the first organized group of women to keep their maiden name — and the troubles they sometimes received when traveling. On that subject, she quotes a critical 1925 article: "some of its resulting confusions are indelicate and therefore may merely be hinted at. Many moral hotel clerks are troubled at the assignment of rooms to the traveling Lucy Stoners and their husbands."

The implication is that hotels did not want to assign shared rooms to unmarried couples. The predicament occurs in fiction: William Styron's Sophie's Choice and Frank Capra's It Happened One Night. But I can't find mention of the predicament in the only vaguely relevant history I have lying around (David Langum's Crossing over the Line, on the Mann Act). Was this ever either a law or a frequent hotel policy — that rooms should not be let to unmarrieds?

How would such a rule be enforced? I imagine that in those days, even fewer women had driver's licenses (one of my grandmothers didn't get hers until the mid-1960s). If the purported husband were the only driver, he might have the only ID. He would probably also have the cash or the traveler's checks. How would any couple who wished to pass themselves off as married and who could do so with a straight face ever be caught out? Or did the rule only come up if the local loose woman was trying to check in with the third different man of the week? Did the rule that I think once was actually exist?

Amanda asks below, "who would give this crackpot money?"

Since you asked, (thanks to the lovely OpenSecrets) I'll tell you.

The only Hyde Park resident to give LaRouche money is retired teacher Anne M Stefan. There are 57 other donors in Illinois by my count, including:

Dr. Cathy M. Helgason, of the University of Illinois at Chicago; "company president" David Casden, featured in a (German?) article that google translates shoddily here ("is the only candidate, who understands the world situation in the large one and shows large guidance qualities in handling such questions. . ."); Joe Kinder, an organic farmer/auto tech and the (related?) Lloyd Kinder, an organic farmer; Richard Kostelz, a Catholic Priest in Joliet; Gary Kuhns, another farmer (and a director of Illini FS Inc.); the amusingly-named Fred Mocking; Betsy Ramp (enigmatically listed as "SELF EMPLOYED/CHRISTIAN SCIENCE PRA"); Truman Schrage, a self-employed sawyer; a Chicago cement finisher named Ernest Washington Jr, and plenty more.

I don't know if that sheds any light on anything, but I just thought I'd offer.

UPDATE: On a vaguely related note, in case you were wondering who V.I. Warshawski author Sara Paretsky (who seems to live here in Hyde Park) has given to lately: Emily's List, Jean Carnahan, Dick Durbin, Wesley Clark, Ron Kirk, Jan Schneieder, Barack Obama, Hillary Clinton, and Jan Schakowsky (as well as Bill Clinton and Carol Mosely-Braun in earlier times).

Tomorrow's New York Times will feature this nice long article on Tennessee whiskey by RW Apple-- not what I should be reading when I have a paper on the use of statistics in NCAA games to write.

Say what you will about the rest of the Times, but RW Apple's food and drink articles will keep me reading for a long time.

Good Guy: Barack Obama

The election results so far, with 48% of the precints reporting, show Obama has 63% of the Democratic votes for Senator.

Psycho Guy: Lyndon LaRouche

The same election results show he's got 2,546 votes in Illinois so far, less than any other presidential candidate, including the ones who've dropped the race. But who's voting for him? His campaign bio describes him as an economist and footwear industry person who proudly notes that he

is the only presidential candidate to have been convicted in a Federal criminal case. As the measure of a man's virtue is often the numerousness and savagery of his enemies, the fraudulent character of that conviction is, in fact, the most powerful proof of his exceptional qualifications for election to be President.

Scan his website, who would give this crackpot money? OpenSecrets.org's presidential tally shows he's actually got slightly more campaign contributions than Kucinich, and ten times as much as Sharpton.

I've already offered some thoughts on the Spanish Election and the "we don't negotiate" line.

Julian Sanchez and Matthew Yglesias both have interesting posts on the game theory of negotiating with terrorists. Sanchez points out that capitulation has a short-term advantage to the country that capitulates, since if Al-Qaeda wants its targets to keep capitulating, it has to make sure that it offers rewards to capitulating. Yglesias argues that Al-Qaeda's decisions to commit further acts of terrorism is controlled more by its ability to do so than by the political returns to terrorism.

The recent proliferation of BlogAds provides some amusement. You can, for example, advertise at Talking Points for anywhere between $125 and $400, depending on where you want the ad to appear. The rates for Daily Kos, meanwhile, range from $300 to $700. If you're looking for more bang for your buck, try Southern Appeal at $10, Matthew Yglesias at $30, or Dan Drezner at $35.

It appears you can advertise pretty much anything, so there is no reason to be left out of the action. I've seen ads for campaigns, books, and magazines. I've even seen a congratulations message to a recently minted Ph.D. I must say, though, that the advertisement that has most amused me thus far is one for a blog. You may have seen it on Professor Bainbridge's blog. If not, click the link and look for the face staring you in the eyes on the left sidebar. [Update: Shortly after this post, the ad was moved to the right sidebar.]

That particular advertisement was also the genesis of an interesting exchange:

Prof. Bainbridge: I'm beginning to think [using BlogAds] is an experiment that failed.

Advertiser: If I may make a suggestion to Professor Bainbridge: move your BlogAds back to the top-left of your page, above the "Management" header. This is the first place nearly all visitors look, which will increase the likelihood of a click-through for those ads. If you want to sell more ads you need to produce better results.

My first ad, for The Ezine Directory, received a dismal 0.283% CTR. My current ad (for this blog) is producing an even worse result (0.163% CTR) -- most likely because his readers are not interested in what I have to say.

Don't get me wrong on this though: I didn't purchase a BlogAd from Professor Bainbridge because I expected great results ... rather, I purchased the ad to show my support for his blog. I feel that getting this blog mentioned on the larger sites, especially while it's growing, is well worth the $20 I paid to support Professor Bainbridge.

I noted earlier that Randy Barnett will be in Bloomington, Indiana next week. A reader emails to tell me who will also be speaking at Notre Dame Law School, March 24th, at 12:15pm in the Law School Court Room. If you will miss him in Bloomington, here's another chance.

Alas, despite this being my spring break, and despite living in Bloomington and going to school within a quick train ride from Notre Dame, I will miss Professor Barnett twiceover.

On the bright side, spring break promises a trip to much-missed New York, and reunion with several scattered friends. [Blogwise, next week also promises a wonderful guest bloggers and a wonderful edition of our 20 Questions series.]

Rehasing the old concerns, Katie Roiphe's The Maiden Name Debate in Slate suggests a modern alternative open to married women: legally change the last name to match the husbands for the sake of the bureaucracies that deal with the children and airplane tickets, keep using the maiden name for social and professional occasions.

Heidi Bond, on the weather:

Now I'm looking out my window. And looking at the calendar. March. Hmm. Does it snow in March? How should I know? I don't know anything about snow, except that whatever it's doing, it's snowing now. Either it snows in March or it is not March; possibly it is "not snowing" but I have been inculcated by months of Michigan winter and the concept of "not snowing" seems foreign.

Amanda's post below inspired me to click the link. This is not what I found:

MARGARET BAXTER (D) NOT RECOMMENDED

Margaret Baxter is "NOT RECOMMENDED" for the office of Circuit Court Judge. Ms. Baxter was admitted to practice in Illinois last Wednesday. At this stage of her career, Ms Baxter does not possess the depth and breadth of experience to serve as a Circuit Court Judge.

HAROLD T. O'SHAUGHNESSY (D) NOT RECOMMENDED

The candidate is currently carrying on a fairly open affair with the wife of one of the members of the Judicial Evaluation Committee (JEC) screening board and, therefore, according to the rules put in place the last time this happened, is automatically found NOT RECOMMENDED.

Writing my Drezner exam, I've had a playlist of various wordless classical and jazz tunes playing more-or-less non-stop, and mostly without even being aware of what's playing. Some of my music-loving friends are baffled by this ability to not hear what's on; they love music so they can't just ignore it and let it be helpful background noise. [This isn't to say that I don't love music, but I certainly have less of an ear for it than a lot of folks do.] I noticed this morning, though, that this inability to not-hear what's playing isn't entirely limited to music-lovers but also extends to some of us folks with tin ears.

Vladimir Nabokov, on background music:

The social or economic structure of the ideal state is of little concern to me. My desires are modest. Portraits of the head of the government should not exceed a postage stamp in size. No torture and no executions. No music, except coming through earphones, or played in theaters.

Why no music?
I have no ear for music, a shortcoming I deplore bitterly. When I attend a concert . . . I endeavor gamely to follow the sequence and relationship of soudns but cannot keep it up for more than a few minutes.

From the UChicago chapter of the ACLU's mailing list, here's the Chicago Bar Association's recommendations of which judicial candidates are highly qualified, qualified, or not recommended.

At least it's something to go on. I took a course last winter, covering voting systems among other things, from a teacher who confessed, "I'm a 3L in the law school and I don't even know who to vote for judges." He'd even been in Chicago longer than most 3Ls — a lifer since 2003 for undergrad and for JD/Econ phD.

Bin Laden Nearly Caught in Afghanistan, French General Says

Jacob Levy speaks the truth once more, this time in response to the notion that the Spanish elections marked a victory for Al-Qaeda. ("Part of what it is to maintain a free society in wartime is to retain the ability to switch back and forth between the credible patriotic governing parties. . .")

Relatedly, I just read this intriguing article on Sunk Costs (via Brian Weatherson), suggesting-- more or less-- that it can be perfectly rational to develop a reputation as a really stubborn son-of-a-----. According to Kelly, a true sunk-cost-honorer would render most terrorist activity counter-productive, because the more you made him (the stubborn son-of-a------) lose, the greater would be his need to toe a hard line and vindicate all of that past sacrifice.

But of course there's more to life-- and to government-- than responding to terrorism, and it's a blow to democracy if we let terrorist attacks control our elections in either direction. As Levy says, "If the Socialists were not appeasers before M-11-- if a victory on their part wouldn't have been a victory for terrorism-- then the intervening act of terrorism doesn't change that."

This isn't to say I particularly wanted the Spanish socialists to prevail, but labelling their electoral victory as if it were a broader moral failing seems to be going overboard and missing the point.

I (as well as Amanda) will be starting Professor Drezner's 24-hour take-home exam in 18 minutes, so hopefully there won't be too much blogging from us today.

To tide you over until my co-bloggers start writing, I'm re-publishing the results of my Focal Points investigation, which I posted last Friday afternoon, so y'all who don't read blogs on weekends (and we can tell from our sitemeter there are a lot of you) may have missed it:


Focal Points

Some time ago, I asked readers:

If you had to meet somebody you'd never met before someplace in Chicago, but you hadn't agreed on a time or a place, and you couldn't talk to them in advance, where and when would you go, hoping that the other person would pick the same time and place? I have my hypotheses, but I'm curious to see what other people say.

In WSJ's Opinion Journal, Rev. Donald Sensing provides a Posnerian account of why marriage evolved and sighs that gay marriage is against God's will, but it's a result of the fact that marriage has already crumbled, not a sign of its coming collapse (hat tip: Outside the Beltway).

Whatever. The bit that caught my eye is this:

Men and women living together and having sexual relations "without benefit of clergy," as the old phrasing goes, became not merely an accepted lifestyle, but the dominant lifestyle in the under-30 demographic within the past few years.

How did "benefit of clergy" come to refer to sexual relations? I admit I'd never heard of "without benefit of clergy" applied to sex outside of marriage, but a quick Google and Bartleby search reveals it's not uncommon. The OED only recognizes the phrase as one pleading exemption from a trial.

When I hear the phrase, I certainly only think of it as a plea at Old Bailey: if you could recite Psalm 51, then you were a literate, a cleric, not to be tried in the secular courts but to be released with a brand. In Blackstone, "without benefit of clergy" refers to statutes that forbade that plea from being entered in certain felony cases.

With that history of use, why would a married couple want the phrase "benefit of clergy" applied to their santified sexual relations?

I've already said my piece on the silly bioethics commission-- or so I thought.

Sara Butler points me to this New York Times article which points me to this publication from the commission (not available online, alas-- I just ordered my free copy). At first I thought it was just a little strange that the goverment committee on morality was moonlighting as a government committee on lit-crit. But then I read the last four sentences of the NYTimes op-ed:

Eliminate all suffering, postpone or weaken a sense of mortality, ease all trauma, and what is left may be something less than human. Even if the revolutionary implications for health care were beyond all doubt, it wouldn't settle the matter. The altered nature of being human would still have to be understood. Which is precisely why Nabokov, Tolstoy and Frederick Douglass are here called to testify.

What Jeremy doesn't mention below is that De Novo's premiere includes short essays by Howard Bashman (of How Appealling), Lawrence Solum (of Legal Theory), and Eugene Volokh (of the Volokh Conspiracy) among others.

Over at my solo blog, I just put up a post about the midnight (ET) launching of De Novo, a new group blog I'm part of that's basically the successor to En Banc, which closed about a month ago. We're launching with something we're calling a "symposium," basically a collection of essays on legal education that we've been fortunate enough to be able to collect from some of our favorite legal bloggers, including Will right here (whose entry will appear later this week), who wrote a fantastic post on why he's going to law school that I can't wait to see the wonderful reaction it'll get from readers, because it's quite good. We're hoping the essays start some sort of conversation. It's an experiment. We'll see what happens. More explanation at my solo blog; or, soon, over at De Novo. I'll continue posting here like I've been, as long as Will and the rest of the gang will continue to have me. And at my solo blog, and, quite frankly, pretty much anywhere if you ask nicely enough. :) Enough self-promotion. I owe you something good tomorrow (that I won't post anywhere else) for tolerating this long-winded link elsewhere.

I've just gotten around to adding the Waddling Kitchen to the blogroll, and WT vindicates my choice:

Cooking for one is a real challenge. More accurately, it's a challenge if you care at all about being efficient. If cooking 5 separate meals per work week doesn't bother you, then cooking for one is theoretically simple - you find five meals you're interested in eating, and cook them in turn. However, it's clear that cooking in this kind of ad hoc way presents several problems. You end up buying too much food, it's hard to think of five discrete meals every single week, and it takes a lot of time. Unless you happen to be home all day, and few people who are cooking for one can afford to do that, there has to be a better answer. Otherwise, it's all to easy to stumble out of your front door in the direction of the nearest pizza joint, which for me happens to be exactly 5 yards due west of my apartment.

As America dithers about what to do to fight the obesity epidemic, contemplating better labeling and other, more activist stances, the European experiences with such approach as taxes on fattening foods and bans on advertising to children are worth noting.

From The Economist:

Yet the [British] government swiftly swatted away the idea of a fat tax, and Tessa Jowell, the culture secretary, has said that she is sceptical about an advertising ban. Mr Reid [health secretary] says the government wants to be neither a “nanny state” nor a “Pontius Pilate state which washes its hands of its citizens' health”.

Why this ambivalence? Not because of doubts that obesity is a serious problem. It increases the risk of diabetes, heart disease and cancer. Rather, because it is not clear that the government can do much about it. There's no evidence that making fatty foods more expensive would put people off them; and in Sweden, where advertising to minors is already banned, children are as porky as they are in any comparable country.

The dollar is strong against the peso, but weak against the euro. Unsurprisingly, tourists are flocking from Europe to Argentina. (Ironically, my family is currently in Europe-- of course, this is my fault, since once upon a time they were supposed to be visiting me.)

Still, if any reader is planning to go to Argentina in the near future, take me with you.

The 2004 NCAA brackets are here. The Big Ten offers up Michigan St.(7), Wisconsin(6) and Illinois(5). My favorite underdog, Florida A&M; is stuck with the opening-round game (16 v. 16). Thinking of gambling on the games? Then listen here first.

Does anyone know where I might be able to find a somewhat cheaper version of this device that Wired profiles, the Magellan GSC 100? It's got the GPS navigation technology and works absolutely worldwide. It also handles email (storing 100 messages [so few!]) and will cost roughly $1000. After that, there's a $50 activation fee, a $30 monthly fee that gets you 10 emails sent and 30 checks for new emails, and a charge of 1-cent per character sent after that. At that price, wouldn't a cheap laptop with a modem be a better way to go?

Working worldwide (some unknown place in Kazakhstan) is essential, so I think what I'm in the market for must be somehow satellite based. I think I'd probably have the ability to plug it into a phone line that could make local calls, though. I don't need the ability to email from random mountain tops, but it would be nice. Time restrictions are ok, so long as I can compose and read messages while off-line. Restrictions on the total number of emails sent and charges by length don't work well for me. Reasonably small is good, but I could probably go as heavy as 10 or 15 pounds without a problem (but smaller and GPS navigation would be a great bonus).

Any recommendations?

In his essay The Law Can't Stop at the Church Door for today's Washington Post, Stephen H. Galebach hopes for government intervention to help the Catholic Church manage the problem of clergy abusing children. Galebach, who is both a Catholic and an attorney, criticizes the legal system for standing silently during the past few decades and allowing the Church to retreat behind at claim of "church autonomy" when it was criticized, particularly for hiring and shuffling around priests who were known or highly suspected of being child abusers. He suggests that if there is a systemwide coverup, RICO would be a useful tool for targeting those who hid abuse cases.

I don't think the doctrine of "church autonomy" is much of a problem anymore (he does note, however, that the doctrine was never endorsed by the Supreme Court). As I understand it, Employment Div. v. Smith would require the Catholic Church to follow the mandatory reporting guidelines for suspected abuse.

The concern, though, with requiring the Catholic Church to be as open as a prosecutor might find ideal, is that after having two millennia to get their act together, the Catholic Church is very adept at being secretive if it should desire to hide things. The Crimen Sollicitationis is a 1962 memo from the Holy Office of the Vatican that explains how the crime of solicitation by clergy should be handled. It requires that anyone who knows that a priest is an abuser step forward and report him, on pain of excommunication. But the report was to be made within the church and the charge investigated through an entirely secret tribunal. It presents a compelling image of information sworn to always be hidden. After the Crimen Sollicitationis was uncovered two years ago, bishops disclaimed any knowledge of it and its recommended procedures. Not surprising: the first instructions require that it "be diligently stored in the secret archives of the Curia as strictly confidential." How is anyone to know how widely distributed this memo really was?

I worry that aggressively prosecuting RICO and other means against the Catholic Church might trigger a retreat into deep secrecy. Greater secrecy might aid the small fraction of the clergy who are abusers. Maybe RICO or other forceful government action would actually be a cleansing of the Augean stables, but that's not a reaction that can be presumed. But the other problem with backing off on prosecuting and trusting the Catholic Church to handle it in its own way, even if that were a trustworthy move, is that granting them separate rules runs into the First Amendment: entanglement and favoritism to a particular religious institution.

I certainly bear no great love to the Republican Party, nor any real delusions that Republican politics will harbor my Libertarian leanings. [As Jacob Levy notes, it would be nice if Republicans remembered they were supposed to make up for their social conservatism by being pro-trade.]

But Matthew Yglesias and Chris Lawrence have good posts on why Libertarians are rarely really motivated about defecting to the Democrats. Yglesias writes:

The Democratic Party's attitude toward topics like the drug war, free speech, gay rights, etc. all too often seems to be -- "one day we will have utterly vanquished the Republican Party and then it will be safe to do something about this stuff."

I've been meaning to post on Waddling Thunder's delicious encomium to bread for a while now, but Heidi reminded me to finally do it. [In related news, while Krispy Kremes are bad for you, apparently they aren't that bad for you.]

Anyway, I found WT's post sufficiently mouth-watering that there's now some rather garlicky mayonnaise sitting in my refrigerator begging to be paired later tonight with some of this crumbly baguette (home of today's Obama sighting).

Still, while I don't champion the Atkins diet at all, I do know folks who've been both happy and healthy by doing little things like avoiding bread and carbs during the day (when, supposedly, they will make you crave more bread and carbs) or eating less bad bread and more salads (during the numerous times when truly good food is noplace to be had).

Anyway, bread is good, gimmicks are bad, but knowing thyself is also good.

[Oh, and while Waddling Thunder's normal blog is good, the Waddling Kitchen is far better.]

Now you can re-read your favorite Science Fiction novels and advance the sum of human knowledge at the same time. Link via LanguageHat.

Senate candidate Barack Obama dropped by Hyde Park's Bonjour Bakery at noon while I happened to be there (Obama is the Senate candidate with the groovy campaign song and impressive cv). It was a quiet stop — ten or so campaign volunteers standing around with Obama pins and pamphlets — to encourage people to come out and vote in support, not a time for tricky questioning or involved speeches. A more elderly Obama supporter said that a trip to Bonjour Bakery was former Senator Paul Douglas's habit on the Sunday before an election.

Obama shook the hands and greated everyone who was standing around for him, starting with the volunteers who'd organized this stop. When he came to Will and me, he asked us if we were students at the university and if we were registered to vote in Illinois. Yes, yes. Get your friends to vote, he encouraged us. You need to wear a warmer jacket, he advised me after shaking my hand. Well, yes, it didn't look like such a cold day when I looked out this morning.

So, go vote on Tuesday if you can, for Obama if you will. And if you know how to figure out what polling place to go to (I don't know where my registration card is), drop me an email.

UPDATE: Thanks to Maureen Craig for pointing out the "Where do I vote?" feature on the sidebar of ChicagoElections.com. Not bad -- I vote at the fire station just down my street and around past Jimmy's.

Having not had any class yesterday, I feel like today's Sunday. And thanks to the web, I can read much of the Sunday Times too. And since I've got to go do my homework shortly (which consists-- I kid you not-- of watching an NCAA basketball game), a few assorted links and thoughts:

Slate's Jack Shafer reviews (very unkindly) Jayson Blair's book. Kudos to the Times for making sure to have a major writer at another publication review the book, and for letting him write ". . . The Times may be the shadiest publication this side of Weekly World News."

The Times is also pleasantly kind to dear Johnny Depp in its review of the movie Secret Window:

Pale and disheveled, Mr. Depp rolls through the film in a wardrobe that looks as if it has been slept in, the kind of believable physical detail that never gets costume designers Oscar nominations because it's far too real.

Some time ago, I asked readers:

If you had to meet somebody you'd never met before someplace in Chicago, but you hadn't agreed on a time or a place, and you couldn't talk to them in advance, where and when would you go, hoping that the other person would pick the same time and place? I have my hypotheses, but I'm curious to see what other people say.

From this week's Economist:

In Spain, bones from Seville cathedral are being subjected to DNA testing to see if they belong to Christopher Columbus, otherwise thought to lie under a monument in the Dominican Republic.

If anyone knows how a confirmed DNA sample from Christopher Columbus is available for reference, please email me. I'm utterly stumped and dying to find out.

UPDATE: A reader writes:

I don't think you'd need a confirmed sample from Columbus himself. If you had samples from a significant number of his descendants, you could use those to authenticate a putative Columbus sample to a high degree of confidence.

It turns out that he's absolutely correct. According to this article, researchers will also be exhuming the remains of Columbus' known son and presumed brother to use as references. What is shocking to me is that record keeping of these remains has survived almost 500 years!

Scientists will also undertake tests to determine if Columbus was Italian or Spanish.

I'm currently re-reading True History of the Kelly Gang, and I think one of my original impressions from my first reading still holds: Peter Carey uses the St. Crispian Day's speech more effectively than Shakespeare does in Henry V.

background:
It's the night of the siege, the night before the big battle, and Ned Kelly and his friends are holed up in a bar with their friends and allies, all singing and dancing to build their spirits for the morning. The schoolteacher says he can't sing, but he tears a few pages out of his book of Shakespeare that he's carrying around.

the passage:

In response to my post about Scalia, Toby Stern writes:

I think the answer is that Scalia himself has created somewhat vague and easily-manipulated tests to interpret otherwise ambiguous constitutional mandates. And I applaud that -- if you believe, like Scalia does, that Article III requires some sort of minimal standing requirements, then you need to provide judges with a way to figure out whether a litigant has cleared those hurdles.

And sometimes, as with standing (and many other areas of law), the best way to do that is to hand over the reins and let judges judge. Perhaps, in many cases, hard-and-fast rules are more desirable than balancing tests. I can get behind that idea.

But rules, while somewhat more restrictive than tests, should not be thought to take the judging out of judging. In the passage Will quotes, Scalia argues against these tests because they are "manipulable." Well, so are rules, and I doubt Scalia would disagree. But if you're going to argue simply that rules are the "lesser evil," then I don't think we get very far in cabining, as Will calls, it, the "potential evils of judges."

In other words, just let the judges judge, man. Let 'em judge. (Aren't slogans fun? Let the judges judge, man! Also, while you're at it, free Mumia, save the whales, something about Adam and Steve, and I'm lovin' it.)

Well, I should have suspected that caving in to the folks at Begging the Question would open the floodgates for link-requesting email. Here's a note I received today:

Ahhh! I feel... almost... dirty writing that post title. It feels so, so, so very wrong to me. I guess I'm late to the party on this one, but I didn't want to let it pass without comment. As society grows more and more liberal, and fewer and fewer things are truly taboo, shouldn't we try and hang on to whatever we can? I don't want to give up on proper grammar just because a website found a few examples of improper usage two centuries ago. Half of the e-mails in my inbox feature the word "definately," but that doesn't mean that's how it's supposed to be spelled. Seventy-five wrongs don't make a right.

The website might do well to add this example, which makes me cringe every time I hear it, from Billy Joel's "Allentown." -- "Every child had a pretty good shot / To get at least as far as their old man got." Aaaack! Billy Joel, you're ridiculously awesome, but that totally ruins it for me every time. (Incidentally, "Summer, Highland Falls" -- best Billy Joel song in his catalog. Just my humble opinion. "I Go To Extremes" and "Famous Last Words" are up there too. Feel free to publicly disagree with me. This is a debate I don't mind starting.) (Incidentally #2, tomorrow is James Taylor's birthday. He's also ridiculously awesome, plus I am not aware of any grotesque uses of the word "their" in any of his songs.)

And that's a singular body. 'They' is a plural pronoun and takes a plural verb.

I shall continue to use "he" as my pronoun of indeterminate gender. When I'm in law school where plaintiffs are female and defendants are male, I'll abide by those standards.

But 'they' does not take a singular verb, no matter what the American Heritage usage panel may rule with a 64% vote.

UPDATE: Kathleen Moriarty takes issue with Will's use of Austen and Shakespeare.

My "they" post below has gotten some sharp response already. Good, I suppose, even if it fills me with blogger's panic upon reading my email. Did I write that? Hmm. Did I mean it? Am I wrong?

So let's see-- here's Paul Goyette on the subject, who links to this Vocabula article (which Language Hat also linked to). And then Ryan at What I Learned Today, who (near as I can tell) avoids taking any sort of stand.

Meanwhile, a lawyer/reader writes:

Aren't you a law student? I strongly recommend you drop the "they" as singular pronoun theory before commencing work at a law firm. Use "he or she."

All those examples are British English, where "they" is considered less wrong than in American English. One of my favorite online columnists said that using they is "lazy, uncreative, and fundamentally incorrect." It doesn't bother me in spoken English, but I agree that it is flat out wrong in a paper. It will probably be correct at some point, but in American English it isn't yet. And the subject-verb agreement, using a plural verb to apply to one person? Makes me wince. If you use they and then a singular verb, then your double-duty argument might hold, but once you throw in a plural verb, it's just flat out wrong. "They" isn't "doing double duty;" you're using it as a plural, even though you're referring to a singular person.

The use of they, their, them, and themselves as pronouns of indefinite gender and indefinite number is well established in speech and writing, even in literary and formal contexts. This gives you the option of using the plural pronouns where you think they sound best, and of using the singular pronouns (as he, she, he or she, and their inflected forms) where you think they sound best.

Where are the women in the blogosphere? Professor Drezner links to a Columbia Journalism Review story asserting that while women outnumber men 2:1 in the "about my life" section of the blogosphere, only 4% of the political blogs are written by women.

Eugene Volokh comments on this AP article about bodies donated to science being used in land mine research by the military.

Professor Volokh doesn't see much of an ethical dilemma in bodies being donated to science (presumably to train med students) used for this type of research:

I realize that some potential donors might view this use either as (1) unworthy on moral grounds (not necessarily immoral, but not something they'd want to participate in -- not a view that I'd take, but I suppose one that some people might take), or (2) unusually and unexpectedly grisly. But donors could say that about virtually any use, except perhaps the most obvious and well-known one (dissection in medical schools).

As for Professor Volokh's opinion that cadaver use in anatomy labs may not be "unusually and unexpectedly grisly," I think it's safe to presume that he's never been in a med school anatomy lab near the end of the term. Though the best of care is taken to treat the remains with dignity and respect and med students are deeply grateful to and ever mindful of the precious gift of the donor and his family, "unusually and unexpectedly grisly" would be a good way to describe what a lay person might see in the lab, even knowing that the body was used to teach anatomy to med students. I don't think many people who choose to make the bequest of their bodies to science can truly imagine what will be done with them, even if they are used for teaching tools.

That said, the moral issue I see in this situation is the fact that the cadaver distribution company charged Tulane to redistribute their extra cadavers and then made a profit from those cadavers. Like Volokh, I don't object to the bodies being used for medical research performed by the military (though I would object if the donors or families were told that their bodies were being used in a Tulane Medical Lab as opposed to being donated to medical science - information that is not clear from the Tulane Willed Body Program website). I also don't object to the fact that the bodies were sold for a profit by the cadaver distributor.

What is immoral here is the fact that the cadaver distributor took money from Tulane. Even if the distributor thought that it was going to ship those bodies to other medical schools at the time that Tulane paid it to, and then upon learning that there was no need for cadavers at other medical schools, sold them to another medical research purpose, it should have, at the least, repaid Tulane the money it charged for redistribution.

It seems that the whole cadaver donation and trade business is in need of a dose of glasnost and perestroika. Better dissemination of information from medical school to donor, and from distributor to medical school about what might the body be used for and where should be standard and people should be allowed to receive money for their gifts. Currently, medical schools, body brokers, and all others are not allowed to pay donors for their bodies, which is part of the reason this situation came about in the first place. Had the army been allowed to offer $25,000 - $30,000 directly to potential donors, people could make informed decisions about what happens to their remains and body dealers would be in a worse position to act in a morally questionable way. Also, if a medical school pays someone (or his estate) for use of his remains, it is less problematic for the university to sell or transfer that property to someone else. If the body market behaved freely, information would exchange in a more transparent manner and people could better choose the destiny of their remains and benefit from the sale of their property.

As someone who intends to donate her body to "medical science," I would like a certain amount of control over its dissemination and would make this clear in my bequest, as I imagine many donors do. If my alma mater does not need my corpse to train future medical students and cannot use it in-house for other medical purposes, I would like for the university to be able to make a profit off of it, even if I can't. Consider it the ultimate alumni donation. But unless the body market opens substantially before I die, I have no guarantees that my wishes will be respected.

In handing back our papers today, one of my instructors delivered a short lecture to the class on "they". It's "not a singular pronoun" she told us. You just can't do it.

As one of the culprits (as, apparently, was most of the class), I beg to differ. The use of "they" as a singular pronoun has a long and glorious history. From Shakespeare (There's not a man I meet but doth salute me / As if I were their well-acquainted friend), to 75 examples from Jane Austen to the OED.

This isn't because singular people somehow become plural, it's because the word "they" simply does souble duty. Language Hat has much more here and here. People often concede that we should invent a gender-neutral third-person pronoun. I submit with support from Ms. Austen and Mr. Shakespeare and many others, that we already have, and the trick is getting the reactionaries to accept it.

UPDATE: I should note-- I'm not a zealous descriptivist, nor do I believe that proper grammar doesn't matter. I cringe when I see the sign at the grocery store that says "If arrested we will prosecute for theft." (I should be the one saying-- "If arrested I will prosecute for wrongful arrest.") Still, centuries of usage, combined with rulings from some dictionaries as well as a definite need in the language for a word to fulfil a particular function ought to give at least the presumption of propriety.

UPDATE: There's more . . .

If you find yourself caught in Bloomington, Indiana on March 25th, be sure to go see Randy Barnett (of blogospheric and other fame) lecturing at noon in room 125 in the Law School. Comments from Patrick Baude will follow.

Harry Blackmun's 38-hour oral history is now available online. (Link via Howard Bashman (natch).)

...another Chicago libertarian-- Matt Tievsky-- now has a blog. I know Matt pretty well, via the vast libertarian conspiracies both in Chicago and in D.C. and so on, and I'm sure his stuff will prove quite interesting reading if a bit intermittent.

And I note (happily) that he agrees with my theory of expressive voting.

In a jurisprudence column for Slate, Stanford Law prof Barbara Babcock notes:

I wish that we who value this as a precious incident of liberty had a more impressive representative than Dudley Hiibel—more coherent, less loud—who made a nobler record for the precious right to be left alone. But he is a little better than he seems in the video (here, just under the mail bag -- ed.). For the record, he was not driving the car, so his drunkenness did not supply additional cause for the arrest. No one asked the daughter what happened, and the domestic-assault charge was dropped before trial. Hiibel's defense lawyer says the daughter actually hit him. Most important, he obviously thought he was being stopped for parking too near the highway. No one told him otherwise in the entire videotaped encounter. Even the most ardent supporters of police power would not approve the investigative work done here.

Jeremy Blachmanon reading a Chinese menu.

"Not responsible for lost articles." Lost articles of what?

Americans.

Over at Oxblog, and from Will right here, some talk yesterday about McDonalds' cheeseburger being less healthy than the California Cobb Salad, although not once you add the fries, the chocolate shake, the apple pie, and the cardboard box the Happy Meal comes in. Or even just the fries. It made me wonder about the calorie and fat content in some other popular fast-food meals.

At KFC, which apparently no longer stands for "Kentucky Fried Chicken," a hearty meal consisting of an order of Hot Wings, two Original Recipe chicken breasts, a side of potato wedges, a large Mountain Dew, and something they unappetizingly call "Lil' Bucket Fudge Brownie" for dessert (have we really not progressed beyond a society that eats dessert out of a bucket?) provides just over 2000 calories, 88 grams of fat (about a day and a third's worth), a day and a half's worth of cholesterol, and almost two days of sodium. But, on the plus side, it does provide 6% of your recommended daily allowance of Vitamin A.

Of a death row inmate, a correspondant of the man said

"He's an intelligent guy, a talented guy, and intelligent and talented guys are not to be wasted."

I won't be able to write fast enough, long enough, voluminously enough to make up for the stuff I've done."

No. This seems to be missing the point, if the ability to write good poetry is being seen as a mitigating factor against whether someone should get the death penalty.

Wilbert Rideau is still a lifer in the Angola State Pen, despite his credible case for the title of 'most rehabilitated inmate' and his due process claims that are worth hearing. He's now an award-winning journalist who travels around the state and nation for interviews and speeches. It's not the strength of his writing for which he's deemed "most rehabilitated," but the strength of the character he continually reveals in it. I haven't seen any claims that were, he released, he would ever kill again. Most likely, he would continue in journalism and the quality of The Angolite he left behind might decrease.

The arguments for keeping Rideau behind bars are simply that this is the punishment which he has been assigned (actually, he was commuted off of death row during the moratorium) and justice demands he serve it. I'm not convinced. To release Rideau would be a merciful way of saying that rehabilitation is possible. The arguments about Booker focus on his pure writing ability, and not on whether or not he's a changed person, which I think is the more pertinent fact where handing out mercy is concerned.

Now that I've figured out how to log in to our Amazon account again, I've finally updated the book recommendations at the side to include the things mentioned in recent blog posts-- High Fidelity, Ada, and For Us, The Living (Robert Heinlein's first, lost, novel which I haven't blogged about until now).

For Us, The Living features in this New York Times story, which is mostly boring except for the fact that it quotes Robert James, a Heinlein scholar. There are Heinlein scholars?