August 19, 2004

Play By Play

by PG

Blogging has so habituated me to writing down every dumb thought that crosses my mind, I found myself doing it last night while I was supposed to be doing homework. Presented without further comment:

A good name for a blog about NY appeals: New York Court of Errors.

Page 3 of my Legal Methods book claims that legislators always have a purpose. Does anyone know what exactly is the purpose of the laws against commerce in sexual aids? The Curmudgeonly Clerk scorns the idea that male legislators are threatened by them; what are the other possibilities?

In a whole article on such bans, Professor Michael Dorf never gets to that issue, being more occupied with the questions of whether a law should stand if it achieves its purpose very imperfectly, and whether sex toys are part of a fundamental right to sexual privacy. But even on a basis of minimal rationality, there doesn't appear to be a reason to ban sex toys.

This reminds me of the various states' proposals to tax lapdances. I don't have anything against such taxes per se -- if there's a commercial activity that's getting past the tax man, by all means bring it back into the government revenue stream -- but I dislike having them lumped with alcohol and cigarette taxes. Alcohol and cigarettes impose costs on our society due to the ills of drunk driving and other dangerous behavior fueled by booze, as well as the health costs of liver disease and lung cancer. Lap dances, on the other hand, seem like a relatively society-friendly enjoyment. Unlike actual prostitution, they do not spread STDs, so what's the harm?

Page 4: "throughout our encounters with statutory materials, your objective should be to create for yourself workable approaches to identifying and resolving issues of statutory interpretation."

Does that mean that we must find ourselves as textualists (the statute means whatever its plain surface dictionary meaning is, with disagreements about the proper dictionary to use); original intenters (the statute means what the legislators meant for it to mean); living constitutionalists (the statute means what it ought to mean in the context of our contemporary society)… ? I know I'm caricaturing the actual legal philosophies of these movements, but I'm a little staggered by the thought of having to have a consistent approach to resolving issues of statutory interpretation.

I am living the truth of the cliché "a little knowledge is a dangerous thing." It is not so much dangerous, precisely, as it is annoying. My educated layperson’s knowledge about law slows down my reading to a ridiculous extent, as I find myself thinking, "Ohhh, so that’s why…" or "Hmm, I wonder if that’s because…"

For the first time, I profoundly envy people who go to law school not because they’re already interested in law, but because it seems potentially useful, profitable or at least respectable. I imagine them digesting this material with the same Metamucil-esque ease as I enjoy in reading science fiction novels. Where an engineer might be constantly halted by thinking about whether a proposed innovation could be possible, I cheerfully breeze through books untroubled by such considerations, because I have no previous knowledge for my brain to attempt to link to this new information.

Could people be restructured with nano-technology to improve our physical capabilities? Hell if I know, or even care very much. If I had to take a quiz on whether the book said that people could be, I could answer the questions correctly, but really, that stuff’s for nerds.

Did the pre- Civil War state jurisdiction over the trials of civil cases involving federal law have results similar to that which the federal courts would have produced? And could we make a comparison based on the percentage of cases that were successfully appealed to the federal courts after state trial (i.e. pre Civil War) compared to the percentage successfully appealed to the feds after federal trial (i.e. post Civil War)? Now that’s interesting.

August 19, 2004 08:56 PM | TrackBack

I imagine them digesting this material with the same Metamucil-esque ease as I enjoy in reading science fiction novels.

I think I can say that such people, if they exist, are rare indeed. I rather think they belong in the same category as Bigfoot or the Jersey Devil.

Posted by: A. Rickey at August 20, 2004 02:11 AM

In my cynical fashion, I would agree with the notion that “legislators always have a purpose.” However, what I would question is whether that purpose always has anything to do with the law passed. What I mean is that the legislators’ purpose may be securing votes for the next election. Or, perhaps repaying an overdue favor.

What comes to mind is the CAN SPAM Act (federal). In my opinion, the law is completely useless as a tool to discourage spam. It affords no private cause of action. It is clear that the FTC will not pursue each individual spammer. Personally, I have seen no reduction in spam. That being the case, what was the legislators’ purpose in passing the law?

1. They don’t enrage spammers too much. While they passed the law, they and the spammers know it is dead wood.

2. They can tell their constituents that they passed an anti-spam measure. Everyone gets excited. “Hey, she’s on my side. I’ll vote for her next election.” Since few realize that the law is pretty ineffective, it’s good PR.

Assuming you agree the law is ineffective, the legislators’ purpose could not have been to reduce spam. It was a PR exercise. John and Jane Doe think that have a law limiting spam. Spammers know they can still spam. Legislators get votes from consumers and spammers.

In the end, the purpose is their own self-interest.

My hunch would be something similar happened with the “sexual aids” law. Let’s face it. It’s stupid. You can use them. You can possess them. You can give them as gifts. You can transport them from another state. You just can’t sell them within that state. Perhaps there was a large contingency of constituents who wanted this. Perhaps someone was repaying a favor. Either way, it’s another “law” that doesn’t do a whole hell of a lot that legislators can point to as the fruit of their labors.

Posted by: Fool at August 20, 2004 09:15 AM

If you find yourself really, really bored, the back-and-forth between Judge Posner and Stanley Fish is a good source of material to muck up any law school reading.

Posted by: Craig at August 20, 2004 03:24 PM

Full-disclosure: Pleasures, the sex-aid store involved in the original litigation struck down in the first case, was one of the first sex-shops in Huntsville, Alabama.

First, PG, the answer to a purpose behind the law: it's part of an anti-obscenity statute. And even after Lawrence, there's some question as to whether protection of public morals is a valid purpose of the law. We can debate whether it's a good solution, but that's normally not the purview of the courts, at least under rational-basis review. And at least some legislators think it's such a good idea that they're willing to sink entire anti-obscenity statutes to keep it in place.

But of course, a cynic might say that's a second reason for including the ban: if you know that the entire statute is likely to be struck down if the ban on sex-toys is included, it's a good way to kill an obscenity statute. ;)

[Dang it.... that's why my comments haven't been registering on De Novo. Ever since I helped you with MT-Blacklist, my cookie here registers my URL as a porn site. I'll be a more frequent commenter now that I'm not getting blocked. ;)]

Posted by: A. Rickey at August 21, 2004 02:54 PM
Post a comment

Remember personal info?

Sitting in Review
Armen (e-mail) #
PG (e-mail) #
Dave (e-mail) #
Craig (e-mail) #
About Us
Senior Status
Chris Geidner #
Jeremy Blachman #
Nick Morgan #
Wings & Vodka #
Recent Opinions
Persuasive Authority
De Novo Reporter

Powered by
Movable Type 3.21