THE WORLD ACCORDING TO DISNEY. After seeing Disney's new animated feature, Lilo & Stitch, I was reminded of Sasha Volokh's outstanding article about the role of property in Disney movies. In particular, Volokh juxtaposes the competing visions of property in Pocahontas ("environmentalist anti-property message") with those in Lion King ("property as a necessary condition for stability, prosperity and environmental protection") and The Hunchback of Notre Dame (property as sanctuary from oppressive authorities; property as a bulwark against tyranny and intolerance) (Warning: spoiler below; don't read if you want to see the movie without knowing about the plot)

In Lilo & Stitch, a mad scientist in some far-off galaxy creates "Number 626" through genetic tampering. Along with being an "abomination" according to the alien tribunal, the cute-and-cuddly blue monster is actually incredibly dangerous -- quick, strong, smart, and lacking any real desires save destruction of large cities. 626 escapes in an exciting space battle and, after making the jump to lightspeed, crashes his ship on one of the Hawaiian islands. Unable to cross water because of his density, 626 is stuck. Meanwhile, the alien authorities decide not to destroy Earth to kill 626 because, as a pesky alien bureaucrat points out, Earth is home to an endangered species protected by the galactic federation: mosquitos. Instead, the aliens send the mad scientist and the bureaucrat to track 626 down and capture it. In order to escape his hunters, 626 poses as a dog and is adopted by the lonely but quirky Lilo, a little girl who names him Stitch. Lilo's parents are dead, and she is being raised by her older sister Nani, who is having difficulty handling the responsibilities of working to support them and simultaneously raising the feisty Lilo. With the ultra-destructive Stitch in the picture, who Lilo loves, everything falls apart, and the social worker is about to take Lilo away when both Stitch and Lilo are captured by alien forces. Stitch breaks out then goes to save Lilo, wreaking plenty of havoc in the process. In the end, galactic authorities prepare to take Stitch away, but Lilo comes forward and presents her license from the dog pound -- she annouces that she bought Stitch for 2 dollars, and that if the galactic authorities take Stitch away, it would be stealing. Always ones to obey rules, the kind-hearted galactic leader agrees that Stitch should stay there, and places Stitch and his "family" under the protection of the space federation. Everyone lives happily ever after.

First of all, one of the key jokes in the film -- that the aliens have been bamboozled into believing that Earth is a wildlife refuge for mosquitos and that humans are important as mosquitos food supply -- lampoons the excesses of environmentalism. One for Lion King, zero for Pocahantas.

But Lilo & Stitch also goes in some new directions, pitting the safety of the entire galaxy from a dangerous genetic experiment run amok against a two-dollar contract. In the end, the two-dollar contract wins out. Of course, this is played for the cute ending it is. But it also represents a view that individual ownership should, at least in some circumstances, trump collective security. It's not really a view I much agree with -- Stitch had done what must have been thousands of dollars in property damage to the island, and was an even greater danger if he ever got off the island, and allowing Lilo to endanger countless people and their property by "holding out" seems to accord just too much weight to private ownership. Private ownership is important, yes, but that should not be the end of the inquiry; inasmuch as a free-ranging Stitch endangered others' equally legitimate property ownership, seizure with compensation to Lilo seems a much fairer balancing of everyone's interests. (Although talk of the hyper-intelligent Stitch's price and value smacks of slavery). So there you have it -- by ending the story with Lilo's assertion of a property right over Stitch, Disney is doing its part to create a generation of children with a one-sided conception of property.

We also get a glimpse of Disney's position on genetic experimentation (and presumably cloning, stem-cell research, and the like). Stitch is the project of a genetic experiment. Echoing modern opponents of genetic experimentation, the alien tribunal calls Stitch an "abomination" because he was the product of a lab, and imprisons him (though he escapes). As the audience comes to identify with the irrepressable hijinks of Lilo and Stitch, the alien pronouncements against genetic tampering seem more and more unreasonable; we're pulling for the four-armed blue rascal. In Lilo & Stitch, we see that far from disaster, genetic tampering can result in creatures with cool powers.

So, to wrap up the messages of Lilo & Stitch: environmentalism is silly, property rights are absolute and never conflict, and genetic experimentation is cool. I might not agree with the entirety of the Lilo & Stitch plank, but at least Disney took a stand and kept it interesting. It was, after all, a comedy.

My bizarre musings notwithstanding, I thought Lilo & Stitch was an excellent movie -- always funny yet at times strangely touching. Though Disney cut some corners with the animation, Lilo & Stitch is definitely a welcome addition to the canon after some of the studio's recent fare.

MORE ON MINORITY REPORT. My brother Brélan today pointed out another problem with Minority Report that I thought worth fleshing out here: Why are the precrime authorities so darn Draconian with their punishments? The normal would-be criminal has their crime stopped, and then is “haloed”, that is, has some kind of neural device attached to their head which utterly paralyzes them. Then the haloed criminals are loaded into some kind of Matrix-esque body storage system where they apparently remain imprisoned forever.

I think it’s worth noting that presently, we aren’t that harsh even with most people who commit crimes, let alone those who are stopped before they go through with it. True, some murderers are executed and some are given life with or without possibility of parole, but quite a few are not “taken out of circulation” forever. Not to mention that the kinds of “depraved heart” and “heat of passion” murders depicted in the movie – i.e., a husband walks in on his cheating wife and lover in flagrante delicto and is about to kill them by stabbing with a pair of scissors – would almost certainly not be grounds for life imprisonment.

Yet, in Minority Report, just such crimes are grounds for life imprisonment, except that the crimes never actually happen because they are prevented by precrime. It’s unclear to me why the criminal justice system of future DC goes so far. There’s no need for retribution since the crime never happened. The whole “locking up people dangerous to the community” argument (deterrence) no longer holds, because precrime stops murders from happening in the first place; it’s not like the would-be murderers are going to kill again if they remain on the streets. (Of course, if you’re one of those who believe it’s not the act of killing someone but the guilty mind that desired to kill that deserves punishment, then maybe lifetime haloing is justified, but I still prefer to punish acts more stringently than thoughts.)

If anything, precrime seems to present the ideal opportunity for a rehabilitative criminal justice system, one that focuses on taking would-be murderers and reintegrating them into society. Unlike our own time, in which we are leery of wholehearted experiments with rehabilitative criminal justice systems out of fear of putting dangerous criminals on the streets, in the precrime era there’s no reason not to try – if the rehabilitation program fails and the killers strike again, they’ll be stopped, so what’s the big fear?

Better yet, would-be murders could be slapped with a stiff, revenue-raising fine. Since murders can be so easily stopped, locking people up doesn’t seem to make much sense. If an attempted – and stopped – murder was turned into a basically taxable event, the government could turn a profit on precrime rather than enduring the expense of locking people up forever in state-of-the-art neuroprisons.

In the end, the fact that haloed prisoners are apparently incarcerated for life may be explained more by the symbolic value of doing so than any retributive or deterrence-based purpose. Total punishment for trying to commit a crime that could never happen can be explained no other way than that policymakers were out to make an impression, perhaps trickling down to smaller-time criminals who precrime could never catch (it only prevents murders). Still, I have to think locking the cheated-on husband away for the rest of his life is going too far, especially when (1) he didn’t actually kill anyone and (2) modern criminal justice systems wouldn’t lock him away forever even if he did kill. Symbolic ends should not be achieved by imposing disproportionate punishments on anyone, whether they committed a crime or not. Unfortunately, dystopian fantasy stories may not be the only places where such thinking prevails.

(See my earlier discussion of the movie.)

THE HEADDRESS STRIKES AGAIN. See 36 U.S.C. § 301:

(b) Conduct during playing.--During a rendition of the national anthem--
(1) when the flag is displayed--
(A) all present except those in uniform should stand at attention facing the flag with the right hand over the heart;
(B) men not in uniform should remove their headdress with their right hand and hold the headdress at the left shoulder, the hand being over the heart...

MORE ON HEADDRESSES. A similar problem to that discussed below is seen in 4 U.S.C. §9:

§ 9. Conduct during hoisting, lowering or passing of flag
During the ceremony of hoisting or lowering the flag or when the flag is passing in a parade or in review, all persons present except those in uniform should face the flag and stand at attention with the right hand over the heart. Those present in uniform should render the military salute. When not in uniform, men should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart. Aliens should stand at attention. The salute to the flag in a moving column should be rendered at the moment the flag passes.

I have to admit, I still don't see what is accomplished by not asking non-uniformed women to comply as well; they're citizens too. And I'm still scratching my head over that "headdress" business.

ANOTHER CHALLENGE TO THE PLEDGE? There've been a lot of rumblings on the blogs about the recent 9th Circuit decision holding the "under God" part of the pledge statute an unconstitutional violation of the establishment clause. (For some balanced discussion, see Prof. Volokh's commentary). Rather than talk about the establishment clause issue -- there's already a vast chorus, and I'd add little, plus the Supreme Court is going to reverse this 5-4 anyway -- I thought I'd consider another potential legal problem with the pledge statute, 4 U.S.C. §4:

The Pledge of Allegiance to the Flag, "I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.", should be rendered by standing at attention facing the flag with the right hand over the heart. When not in uniform men should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart. Persons in uniform should remain silent, face the flag, and render the military salute.

Headdress? Where did Congress get that?

Seriously, though, I couldn't help but note that the statute reads "When not in uniform men should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart." Apparently non-uniformed women (note it neutrally says "persons in uniform") don't have to do anything. So there you have it: the statute classifies on the basis of gender. Under the equal protection clause, such a gender-based classification must survive intermediate scrutiny, that is, it must serve important governmental ends and the means used to achieve those ends must be substantially related to the ends, or be struck down. (Whatever that means -- I admit I haven't really been able to figure it out.) Even though the statute doesn't really have any bite -- people aren't required to say the pledge or salute the flag, Barnette -- such a classification is still of at least symbolic significance. In order to comply with the official pledge, men have to do more than women. Without combat risk or pregnancy-related biological differences in play, I'm not sure gender discrimination in the pledge statute can be said to survive intermediate scrutiny, especially when keeping VMI all-male didn't survive it. Based on VMI and similar precedents, this element of 4 U.S.C. §4 could theoretically be grounds for a successful suit striking the gender discriminatory part of the statute. It just goes to show that seemingly sacrosanct government institutions can pretty easily have at least potential legal flaws with them. That is to say, there's an argument based on mainline equal protection law (though courts are always prone to carving out exceptions). They probably wouldn't carve one out here -- unlike striking out "under God," I don't think 99 senators would oppose changing "men" to "persons." So such a suit could have a chance of success.

Of course, I would be pretty surprised if anyone brought such a suit; until then, it's purely academic. Just because something could be done doesn't mean it will. There are lots of potentially "unconstitutional" statutes floating around, but the doctrine doesn't matter until it actually gets before a court.

THE TWENTY-SIX-MILE LIE. The story of Pheidippides' famous run from the Battle of Marathon to Athens to announce the news of the Greek army's victory over the Persians, after which he collapsed from exhaustion and died, has troubled me for some time. As the familiar test of endurance in our own time takes its name from these purported events, we moderns perhaps have some stake in protecting the traditional account, but that's no reason to perpetuate untruths.

My problem with the canonical version is a simple one: Where were the horses? Sending messengers 26 miles to deliver a message (indeed, Pheidippides had apparently gone over a hundred miles the day before from Athens to Sparta, to beg the gerontocracy for Spartan military muscle at Marathon) seems pretty foolish if you have horses on hand. The Athenian military may have been based on infantry hoplites, but the fact they weren't cavalry-centric doesn't mean they didn't have horses. Ancient Greek culture clearly shows exposure to horses (think Pegasus or Hercules and the Augean stables), and if you're ever going to use your horses, getting messages around in wartime seems the time to do it. Because of this, I've long felt there was something fishy about the classic marathon tale.

I've let this suspicion ferment for a while without doing anything about it -- I'm a far cry from a classicist and I don't have everyday exposure to resources for resolving this question without going a little out of my way. Whenever I discussed the issue with people (i.e., my dad), I got responses based on the hilliness of Greece in general, and specifically the terrain surrounding the plains of Marathon, which might have made it difficult for the Greeks to pony-express it.

But yesterday I got my hands on F.J. Frost, The Dubious Origins of the 'Marathon', 4 American Journal of Ancient History 159-63 (1979). While I'm the first to admit that publication in an academic journal is no seal of uncontrovertible truth, it is nice to know that I have an expert on my side. Frost talks at length about whether the original runner's name was really Philippides and "Pheippides" was a copyist's error, as well as how various versions of the story from Herodotus got passed down through the hands of Plutarch and his ilk, and was finally whipped into truly modern shape in Robert Browning's 1879 poem from Dramatic Idylls. This is all very interesting, and probably would be even more so if I knew what Frost was talking about, but more important is what he has to say about what I really am concerned with -- the horses:

Unfortunately for the legends of long distance runners, someone in one of the many villages along the route undoubtedly jumped on a horse and swiftly outdistanced those on foot.

For a moment I felt validated, but then I realized Frost had preempted my marthon myth-busting argument with an article written the year I was born. There is nothing new under the sun.

Seriously, though, Frost's article makes some nice points, and in the end we have to chalk up the marathon story not to athleticism but to the obscuring mists of a Herodotus-to-Plutarch "telephone game." As Frost aptly observes:

For all we know, every great battle in antiquity eventually attracted anecdoctal embroidery like this, with a runner arriving at the gates of the victorious city, gasping out the good news and breathing his last.

In the end, the lesson of the Marathon Myth is one we already knew: show some healthy skepticism whenever you hear anyone tell you "the fish was THIS big..."

MORITZ REPORT ON MINORITY REPORT. Just saw the new Tom Cruise vehicle Minority Report last weekend. All around not a bad flick, but the plot holes left enough room to parallel-park an aircraft carrier. If you haven’t seen the movie yet, don’t read further; this could spoil it for you, or even worse, it might make no sense. So here are my problems with Minority Report:

• It’s awfully convenient that the pre-cogs’ amazing predictive powers are so perfectly limited to the District of Columbia.
  
• Early in the movie, there’s a great deal of exposition about how the pre-cogs can only see murders (and not other crimes) in advance, because of the way murders rend some interpersonal-numinous fabric. But then as soon as Tom Cruise is on the run with his kidnapped female pre-cog, suddenly she can predict that it’s about to start raining, that he should stand in a particular spot, and the like.
  
• The precrime progam is based on these three very rare pre-cogs – so rare that the director had to commit murder to gain access to a third pre-cog – and yet precrime is about to go national. How is beyond me – where are they going to get more pre-cogs?
  
• Biggest of all the holes, early in the movie Tom Cruise spends quite a lot of time finding out from the developers of precrime about so-called “minority reports”, suppressed visions by one of the pre-cogs of an alternative future where a murder doesn’t happen. (Minority reports would be the psychic’s version of reasonable doubt). Yet, in the end, there were no minority reports – the visions of Cruise “committing murder” and of Agatha’s (the female pre-cog’s) vision of her mother being killed turned out to be 100% correct; it was just that in the latter case the visions were misinterpreted by technicians. So the system was perfect after all…which leads one to wonder why reports were being suppressed earlier in the movie. Apparently the movie takes its title from a red herring.
  

Overall, in my opinion, the movie failed to realize its considerable potential. It presented an interesting moral dilemma – if people's actions can be predicted, should they be locked up in advance and prevented from engaging in criminal activity? This question, the core question of the movie, pits individual rights and individual dignity against the overall good of the community. Would such a regime, where all criminals were brutally stopped before they even acted, be a utopia or a distopia? Do we demand the right to commit crimes and face the penalties ex post, rather than ex ante? Yet, instead of really letting us ponder the interesting issues, Spielberg cheated by predicating the whole precrime program on murder of a mother in order to take her pre-cog daughter away, polluting the whole program with cinematic original sin. Don’t think we didn’t notice your sleight-of-hand, Steven.

(For a more comprehensive discussion of the movie, see what The Indepundit has to say, particularly regarding various high-tech constitutional violations with which the movie abounds.)

SOME COGENT CRITICISM of my marriage penalty post over at Dean's World. Dean's major beef is that I have set up a straw person to attack, a vision of social conservatism that doesn't really exist:

[W]here are these conservatives who would, as a matter of course, advocate legal penalties for people who don't live like Ward and June Cleaver?

It's a good point, though I'm not sure that Pat Buchanan's commitment to "equal pay for equal work" extends to, say, striking down a state law that gives civil service job preference to war veterans (a group women have a harder time getting into) for the highest paying jobs, but cuts out the veteran preference as applied to lower-paying secretarial spots. Additionally, Dean's comment notwithstanding, right now we do just happen to live under a regime which doles out tax benefits to those who live like Ward and June Cleaver and penalizes two-earner couples. And even if two-earner families filed separately, they still wouldn't get the same tax benefit as one-earner families get from filing jointly. If one-earner couples get treated better than the "baseline", to my mind that's just another way of saying two-earner couples get penalized.

Finally, I ask Dean if he really believes that lots of mainline conservative voters don't think many modern problems would go away if married women worked less and were more focused on family, home, and child-rearing. Unlike him, I actually don't believe there's anything particularly insane about such a view, though it's certainly not the only view possible. If you do agree with this view, however, there are at least some reasons why you shouldn't be against the marriage penalty. And yet people who I think do hold that view are, as far as I can tell, often reflexively against the marriage penalty. In any event, thanks go out to Dean for keeping me honest.

IN DEFENSE OF THE ELVES. I've received quite a bit of pro-elf email since my post on that subject. (And yes, it's "Elrond", not "Elron"; my apologies.) In light of this, it only seems fair to include the most encyclopedic response I've gotten to date:

I am writing to you concerning an article u wrote and posted in the section of your web site, rant zone. The article in question is about how the Elves of Tolkien's Middle Earth did nil to actually help and/or save Middle Earth from its imminent downfall. In it you stated that first of all, in the time period of The Lord of the Rings, the Elves did nothing but give out a few gifts and call together a council. However, had you actually looked into what you intended to "rant" about, you'd find a much different point of view upon you. Firstly, it was an army of combined forces from Lindon, Rivendell, and the few remaining forces of Arnor(the first two being Elven realms) that destroyed the tyranny of the witch-realm of Angmar, set up by the lord of the Nazgul in the beginning of the third age. Later on in this age, during the war of the ring, the Elves were not able to further aid the fellowship for their remaining forces were defending their own realms, wh! ! ich were on the brink of destruction. Galadriel's own realm of Lorien was brutally attacked three time during this period in time. Legolas's own homeland of Mirkwood was under constant harassment. Rivendell, the dwelling of Elrond, has no standing army with which to attack an enemy, it had been sieged already and had used up it's remaining forces in putting down that siege. And as for Lindon, it had lost, by this time, so many forces in the battles it took place in( most of which were helping save the realms of men) that it could not afford to send out an army with out the threat of being over-run. Still, it managed to keep it's navies out at sea, so as to disrupt the Corsairs of Umbar from raiding the coast of Gondor.

That covered, we'll move back to the second age. In this age, the Elves did much in the way of "saving the world from darkness". During the first part of the age, the people of Gil-Galad(the Elven king at the time), traveled many times to Numenor, to visit the men there, all the while attacking and defending from the armies of Sauron. However, it was the men of Numenor, and there foolish ignorance that were the cause of its(Numenor) sinking. After this was formed the Last Alliance of Elves and Men, under the leadership of Gil-Galad and Elendil the Tall( the King of the Dunedain). They eventually forced their way into Mordor and in the end Sauron came forth himself, at the front of his armies, to do battle. Now you put down Elrond for not doing anything to stop Sauron during this last struggle, well, he couldn't. Gil-Galad and Elendil went up Mount Doom to find Sauron and destroy him. When he went up the mountain, Gil-Galad gave control of the army to Elrond-to command unto victory. It was Gil-Galad and Elendil who destroyed Sauron, not Isildur as you claim, he went up the mountain later on with Elrond and Cirdan, and cut the ring from the hand of Sauron. Then he failed to comprehend the magnitude of the moment and did not destroy the ring, but kept it- thus dooming Middle Earth to endure another rising of Sauron, as the wise of the world learned, Elrond among them. So far you can, hopefully, see the terrible mistake you made in being too hasty in your judgment of the Elves. Though I am not through, you portray in your article, the orcs, trolls, Saruman, and even Sauron himself as partially, if not totally, good. The feud between Elves and orcs is very ancient. It began mostly because orcs were created from Elves captured by Morgoth in the first age. He then unleashed this abomination upon the free peoples of the world without cause. And it is so that Elves have lost many kindred to orc savagery. If the orcs are so good, then why do they align themselves with a creature so foul as Sauron and Morgoth? The same goes for trolls. As for Saruman, he wanted the ring for himself, granted that in the beginning he was good. However, he turned to evil, and wanted to use the ring to rule the world himself. Sauron, I can't even begin to understand why you could view him as even remotely good. He wanted in the second age to destroy Numenor, he was the one who cause the Numenoreans to rebel against the Valar. He also tried to abolish the realms the Elves fought so hard, and lost so much life to keep. Such arrogance, as is displayed in your ignorent, insolent article, demands that it would be wise to go back and actually look at these books and reference materials, so as to see the err of you ways.

I have to admit the author of this response commands knowledge of substantially more Middle Earth lore than me (and is to be congratulated for apparently making it through the Simarillion), and I have to thank him for sharing such a wealth of knowledge. Nonetheless, even on the author's own terms, I remain skeptical -- this explanation is derived from a history as told by the elves, but what if that history itself is skewed? Frankly, I think we have to look at what the Elves do in the "present", and I remain unimpressed. Additionally, for the most part the author justifies his conclusion that orcs are evil by reference to their association with Sauron and battles against the elves, and thus argues that elves must be good. For me this just isn't persuasive; it is an example of "begging the question" by assuming the answer to the question of whether good and evil in middle earth is aligned as Tolkein presents it. In my opinion, the author also tries to have it both ways -- the elves are praised for fighting hard against the orcs, but the orcs are criticized for their brutality against the elves. The reality of middle earth, I think, was much less black and white than the author of the above response post suggests. Yet, I have to thank him for such a thoughtful reply. Above all else, it is a real compliment to know something you wrote is provoking so much thought in readers out there in the blogosphere.

PUT BLOGGER ON A DIET. I'm pretty new to blogging, but already I've seen a lot of the "I had this great post, but then blogger gobbled it up" line. After losing a message, people are too tired to re-write it, and the result is a tragedy -- every day, insightful or entertaining (as well as asinine) points of view are lost to blogger's voracious maw.

But it doesn't have to be this way. There are some very easy steps to avoid bloggergobble, and I really wish people would be conscientious about using them, because I for one want to see what they have to say. On the one hand you can you can draft in a file saved to your desktop and then cut and paste from there; if blogger crashes and you lose the post, you can just cut-and-paste from the document on your hard drive and your jeremiad is saved. Much easier, and what I always do, is to simply select the whole message and copy it before clicking "post and publish." If you get logged out, you can always log back in and press paste, and your message is saved. Either way, it cuts down on lost posts. I know this is simple stuff, but if people would simply copy the text they're about to post before clicking "post & publish," who knows how much more wisdom -- and idiocy -- would be out there for all to enjoy.

MORE ON VILLIFYING THE GOOD GUYS. Been getting some lively responses to my Elvish Conspiracy post, as people apparently find interesting the trope of taking villains and explaining their point of view in a way that makes them seem unvillainous while painting the "good guys" as really being baddies. Some find it hilarious, while there are always purists who find it maddening. I got very similar reactions to my piece on Titan A.E. and the Drej, which argued that humans, not the alien Drej, were the real villains of the movie, and the Drej were just misunderstood. In that piece, I suggested that non-speciesist movies like Star Wars are preferable:

[In Star Wars,] it's not about what species you are or who's human and who's not human. Instead, it's about your politics -- are you with the Empire or against it? Ultimately, let's hope that's the direction we're headed, to a future where aliens are judged not by the color of their exoskeleton or the number of mandibles or orifices, but by the content of their character.

Of course, in Star Wars there's a flip to make as well -- the Empire brought order, while the rebels simply wanted to destroy, no doubt sending the galaxy back into the dark ages like hyperdive-wielding Visigoths. Jonathan Last beat me to the punch in an excellent article critiquing the rebels and praising the Empire. Indeed, whether it's the Lord of the Rings or Star Wars, we should look deeper than the conclusory label of which side is called "dark" by the author, and actually consider the substantive merits of the various sides.

MARRIAGE PENALTY REVISITED. See Sasha Volokh's rejoinder to my marriage penalty post:

Garrett argues that social conservatives should love the so-called marriage penalty, which is actually a marriage bonus for traditional one-earner families and a penalty for two-career families, while liberals should be the ones complaining. He concludes that conservative politicians are merely shrewd about getting votes and that "[w]hether it helps build traditional family values or not, fighting the 'marriage penalty' is a more compact and better-packaged meme that brings voters into the fold."

I think Garrett ignores those conservatives or libertarians-in-the-conservative-fold, like myself, who just dislike any distortion of the marriage decision, whether it's a bonus or a penalty. Note that the marriage bonus/penalty is a byproduct of progressive taxation. You could reduce the marriage penalty by fiddling with brackets, but this would exacerbate the marriage bonus -- which is another reason (though possibly not a dispositive one) to oppose progressive taxation and favor a flat tax.

Indeed, I was intentionally ignoring fiscal conservatives or libertarians like Sasha because the interesting inconsistency was not in their at least internally consistent position but in the internally inconsistent position of social conservatives. While the fiscal conservative arguments may have some merit to them, I don't think it is opposition to "any distortion of the marriage decision, whether it's a bonus or a penalty" that has the majority of non-Wall-Street-Journal-reading Republicans riled up, or in fact, that is the mainline Republican statement against the marriage penalty. (Remember, the "no penalty" "baseline" is actually a tax benefit to married couples that follow the 1950s model). Of course, it is always possible that "socially conservative" politicians truly oppose the marriage penalty on the grounds Sasha articulates, but simply use the internally inconsistent message of "we need to support family values, not hurt them" because the fiscal conservative or libertarian line doesn't make as good a soundbyte. Possible, though I prefer to take people at their word.

Sasha is also correct that the marriage penalty is a "byproduct of progressive taxation," but that doesn't make the marriage penalty much of an argument against progressive taxation; the marriage penalty is also a byproduct of taxing two married people differently from two unmarried individuals. Rather than switching to a flat tax, taxing all individuals as individuals seems a much less radical way to fix the problem in a way that's fair across the board. While there may be reasons for supporting switch to a flat tax, eradication of the marriage penalty is not a particularly good one -- it's using a missle to kill a mouse when you have a perfectly good mousetrap in hand. I think the reason we don't simply switch to one progressive column for all people, but instead have two columns -- one for marrieds, one for unmarrieds -- is that lots of people actually like the marriage bonus, believing, I suppose, that marriage is a cornerstone of the republic or something like that.

But point taken as to the part about ignoring libertarians, and thanks to Sasha for keeping me honest. I made the original post not to advocate one policy solution or another, but merely to point out a particular irony that infects the popular debate about the marriage penalty.

DISPELLING ELVISH PROPAGANDA. Something is rotten in the state of Middle Earth. And it's not the rise of Sauron's forces. It's the Elves. On the surface, one gets the impression that the Elves in Lord of the Rings are pretty swell. But on closer inspection, it becomes clear that something is seriously amiss.

Perhaps you will not agree, but for all their grand talk of saving the world, it seems Elves play a rather limited role actually doing anything about stopping Sauron. Sure, the Elves give away one or two presents to the Fellowship (the rest they keep for themselves), and sure, the Elves organize a council, but who do they actually put in harm's way? Really only Legolas. Not to slight Legolas, an Elf for whom I have the utmost respect, but this is a pretty meager contribution to the cause for the supposed archenemies of Mordor. Perhaps Elves fear to put their immortal lives in harm's way when they can have others do their bidding? Throughout Lord of the Rings, the Elves are consummate hypocrites: Elrond chides the dwarves for "hiding in their mountains", but all he and the rest of the Elves do is hide in their forests. Elrond may heal a person or two, and Galadriel may dole out a gift here and there, but all in all, it's a pretty weak showing.

Elves may be mostly talk in Lord of the Rings, but even their talk about saving the world from "darkness" is really not all that admirable. Elves want to save the world because it is a world that benefits them, and they've constructed a useful typology of good and evil which serves their ends. Of course the elves don't want change, safe in beautiful country-club-esque forest homes like Rivendell while everyone else scrapes by in the dirty, muck-a-day world of Middle Earth. When it comes down to it, the one thing the Elves really do seem to care about is keeping everyone else out of their beautiful forests. Above all else, Elves are defenders of the status quo. They are the Middle Earth's reactionaries.

You may protest that I am being unfair to the Elves; that while perhaps they could have done more at present time, one need only look to the past for examples of Elvish bravery. But can we trust accounts of the past? After all, the ancient histories of Middle Earth are all written in Elvish; of course they would portray themselves as the good guys. But keep in mind that the Elvish history is a history told by the conquerors. Without an Elvish Procopius, we will never get the full story. And even in the history as told by them and their apologists, we can pick up signs that the Elves were really no different in the past. Their legends paint man as weak; the story is that Isildur blew it for all the world when he failed to follow Elrond's orders and destroy the One Ring when he had the chance. Perhaps there is something to this, but then again, while Elrond was cheerleading from the sidelines, Isildur did all the dirty and dangerous work battling Sauron, putting his life on the line, and actually cutting the ring from Sauron's hand. One almost feels some pride in Isildur's defiant refusal to be a puppet to the manipulative Elrond. If Elrond wanted the Ring destroyed so badly, he should have done something about it rather than going home like a crybaby to concoct a propaganda tale to force gullible Men and Hobbits to do the Elves' bidding for the next three millennia.

While the Elves are problematic, one doesn't have to look far for some more positive figures in Tolkein's wonderfully imagined fantasy world. For instance, despite all the jabber about Saruman's treachery and evil, building an Orcish army and tearing down the trees at Isengard, he was a man of considerable vision with a serious desire to improve the world. After all, the Elves had been in power for centuries, with things in Middle Earth staying pretty much the same. Orcs were always treated as second-class citizens by the other races and not invited to share fairly in the bounty of a world in which they belonged as much as anyone. Orcs might be ugly, but that doesn't mean they don't have feelings. Ultimately, while the Elves would be content to gaze out contentedly from the porticos and verandas of their forest mansions, as Orcs struggled by unemployed, Saruman tried to change the sorry social order of Middle Earth for the better. One may question his methods, but it is difficult not to respect his ingenuity in finding ways to employ the idle Orcs in his region as construction workers and military contractors. The Orcs, no less than any other creatures in Middle Earth, deserve the dignity and satisfaction that an honest day's work provides, and Saruman gave it to them without recourse to a welfare state. Saruman gave the Orcs a hand-up, not a hand-out.

Indeed, the state of relations between the races of Middle Earth had always been reprehensible, and the Elves did nothing to remedy this; if anything, they just fanned the fires of hatred. None of the members of the anti-Sauron alliance, Elves least of all, ever gave the Orcs or the Goblins or the Trolls any respect whatsoever, when all these misunderstood creatures have ever wanted was a fair share of the beautiful world the Elves had taken for their own. The Elves' blindness to their own bigotry suggests a need for radical action on the part of underappreciated citizens of Middle Earth, and Sauron - the most unappreciated of them all - stepped forward as their leader. Sure, Sauron may have been a bit overzealous in his pursuit of social justice, but at least he was willing to do something, to shake things up, to give Orc children a chance to grow up in a better neighborhood than the slums of Mordor. That's a good deal more than we can say for the Elves.

ENVIRONMENTAL SMACKDOWN: Just saw that the old World Wrestling Federation ("WWF") has been pinned in a House of Lords cage match against the World Wildlife Fund ("WWF"), and is now going by World Wrestling Entertainment, Inc. ("WWE"). Somehow, this whole situation just seems wrong -- what is the House of Lords doing meddling with the likes of The Rock? Maybe I missed something in history class, but didn't we (America) fight the Revolutionary War specifically so this kind of thing wouldn't happen? In any event, rather than "WWE", I think they should go with The Federation Formerly Known as WWF.

DO RULES RULE? One of the classic legal pivots involves debating whether a "rule" or a "standard" is preferable in a given situation. Much legal argument fluctuates between these two rhetorical modes, as explored in Duncan Kennedy's famous Form and Substance in Private Law Adjudication, 89 Harv. L. Rev 1685 (1976). But I was wondering today -- how do we tell rules from standards? Is it a rule or a standard that we use when deciding whether something is a rule or standard? I know, I know -- that way lies madness -- but seriously, could someone please tell me? I have to admit, Dunc's extended definition seem's decidely standardlike. (see, e.g., Kennedy at 1687-88, describing "formal realizability" as "the degree to which a legal directive has the quality of 'ruleness.'"). Does it matter that we don't have a rule for determining what is a rule? Does it matter that we merely can say it's formally realizable or determinate? I think it might, at least inasmuch as rule-worshippers may have to face some discomfort if they can't decide what to idolize and what to cast down without resorting to a standard.

Note: I do not believe asking whether we determine what is a rule and what a standard through a rule or a standard to be circular, at least operating on definitions of rule and standard that do not use the word rule or standard. I just think the best answer we have is "determinacy," which may in the end turn out to be not that much less arguable than "fairness."

FRO-YO PONDERINGS. Today at work I visited the Frozen Yogurt ("Fro-Yo") machine. Confronted with the choice between French Vanilla and Old World Chocolate, I balked and chose swirl, the half-and-half mix option. Instantly I regretted the decision. Like all Fro-Yo, the taste was a sorry shadow of real ice cream. But more disheartening than taste was the moral realization that, at heart, I'm nothing but an unprincipled compromiser. People who choose swirl are indecisive, are afraid of making tough decisions and sticking to their guns. Instead, they make the "safe" choice, and as a result never really experience the individual Fro-Yo flavors in all their unmitigated glory or failure. Caesar and Napoleon may have made mistakes, but I doubt they would have chosen swirl -- no, they knew how to make a decision. Instead of making a decision, I made an indecision, choosing to settle for the cone of mediocrity. Don't make the same mistake. Next time you visit the Fro-Yo machine, take a stand.

MARRIAGE PENALTY PARADOX. Just thinking about the "marriage penalty" and how it is most stridently opposed by social conservatives, on the grounds that marriage is an institution that should be encouraged in these sinful times. The penalty, though, is actually not on marriage itself, but on dual-earner couples where both spouses are earners, especially couples that earn equivalent amounts. Far from penalizing the nation's Cleaver families, the tax law actually benefits the traditional 1950s one-earner model. (See explanation that I won't bore you with here.)

On these facts, it looks like social conservatives should love the Internal Revenue Code's treatment of marriage -- families with stay-at-home moms get tax benefits; dual-worker families with women earners messing up American family values get penalized. Nothing here that should make Strom mad. If you think the phenomenon of the working mother contributes to many of today's social problems, as many quite reasonable people do, it would seem entirely reasonable to support a tax regime that gave bonuses to stay-at-home moms and slightly penalized moms who work. (Of course, such a regime couldn't avoid discriminating on basis of gender without also benefitting breadwinner women married to "Mr. Moms," hardly part of the conservative agenda, but the number of such couples is still small, and single-earner same-sex couples are kept out of the tax savings by state prohibition of same-sex marriage).

As the "marriage penalty" is part of a system that actually creates incentives for moms to stay at home and not work, you'd expect social conservatives to be pushing for more marriage penalty (and thus more marriage bonus for traditional couples), not less. Indeed, liberals should be the ones supporting elimination of the penalty, in order to remove one more burden from women's equal opportunity as workforce members. Yet, paradoxically, eliminating the marriage penalty has been a cornerstone of the Republican agenda since the Contract with America and bills that would eliminate or dampen its effect have been opposed by liberals, and one was even vetoed by Clinton. Go figure.

The real reason, no doubt, it that politicians, especially conservatives, aren't stupid when it comes to winning votes. Whether it helps build traditional family values or not, fighting the "marriage penalty" is a more compact and better-packaged meme that brings voters into the fold, be they pro-tradition, pro-marriage voters who might be more ambivalent about the "penalty" if they really understood its functioning, or dual-worker couples who, like everyone I've ever met, prefer to pay less taxes personally.

HORSING AROUND. I was just at the Belmont Stakes last Saturday, hoping to watch as War Emblem galloped into the history books. Instead, the poor horse fell down at the start and 70-1 longshot Savarra won (my money was on Magic Weisner (4th) and the wrong long-shot, Artax Too, but oh well). Losses aside, it was something else to see the spectacle. I hadn't realized you could just up and go, but some friends invited me and I hopped on the Long Island RR; all in all, it took less than 30 minutes to get from my apartment to the track, where you can just walk in and mingle with cooler-toting groundlings for only a dollar. Alas, we could have been in the grandstand, if only we had the foresight to get tickets (and bring our ascots). An unnamed friend, slightly peeved at all the jostling and spilled beer in our decidedly..."populist"...milieu, quipped: "If Thomas Jefferson could have seen this, he would have shot himself." (Of course, I have to disagree, though I did chuckle).

The culture of the racetrack, though, is pretty weird--and classist. It really was teeming with people, and large swathes of standing-room-only areas are accessible for only a buck (and the clubhouse for two), even on the biggest raceday of the year, while seersucker-clad elites lounge in the swanky restricted areas (i.e., with seating). I thought maybe such a nominal entry fee (a buck) was due to the fact that it was the betting that mattered to racetrack management, but then I heard that parimutual betting isn't all that profitable. Like every other business, the secret is the drinks.

Perhaps the real issue is not the spectators, but the horses: there would be no races without them, yet it's the owners who profit from the sweat of their, um, brow. Does this deny the basic horsehood of the equine contestants? Who knows, but animal-friendly Steven Wise, Peter Singer, or even Sasha Volokh might say so, or at least encourage the horses to form a union. On the other hand, does money really matter? Horses may be the real winners in the end: a star track runner's gold metal or Wheaties advertising deal pales in comparison next to a winning thoroughbred's remaining years as a premium stud.