Well, you can teach a law school class in just about anything — for years, at my law school we jokingly called idiosyncratic seminars "Law and My Ego" — so...

... I shrugged when I saw the New York Magazine article, "Elon Musk Has So Many Lawsuits They’re Teaching a Class in Law School."

It's not a question of how many lawsuits you've got going, but whether any given law professor gets inspired to build a course around your lawsuits — or lawsuit. Even a single lawsuit could form the basis of a course.

What makes it interesting enough to blog — any given article can inspire a blogger to write a post — is that the lawprof is Stephen M. Bainbridge. His course is “Law of Elon Musk.” He explains:

Tesla’s acquisition of SolarCity is an excellent case to teach students. And then there is a pending case on his Tesla CEO-compensation package, which is a great case because it’s what will strike the students as an egregious amount of money — billions of dollars in CEO compensation — in excess of anything we’ve ever seen. It’s a great case to talk about: Is this a situation in which it would be rational for a company to put together that sort of a compensation package?...

"Apparently the University of Louisville law school has decided to meet declining enrollments and dwindling funds not by upping their game, but by 'branding' itself as a 'progressive' institution committed to 'social justice.'"

Writes lawprof Stephen Bainbridge:

Indeed... U of L's interim dean has filed trumped up charges against someone who limply objected to the project by encouraging his students to [think for] themselves. Which is obviously heresy in the left-liberal reeducation camp U of L has become.

The real tragedy, however, is that what's happening at U of L is just an express embracing of the leftist hegemony that pervades American legal education. Conservatives, libertarians, people of faith ... heck, anybody to the right of Hillary Clinton are hugely underrepresented in the legal academy and our students who profess such values have learned to hide their light under a bushel lest they be sent off to the Vice Chancellor for Diversity, Tolerance, and Goodness (higher education's version of the Ministry of Love).

Here's an op-ed by Sam Marcosson, one of the school's lawprofs, defending the school's compassion-and-social-justice branding:

The premise of Professor Milligan’s polemic was that identifying the law school as a compassionate institution is somehow a “partisan” stance that takes sides in ideological wars in which he believes a law school should not take sides.... I do not believe it ever occurred to anyone who proposed this at the law school or voted for it that it had any ideological or partisan content at all, or that supporting it somehow sent a message that a commitment to compassion would, could or should exclude anyone based on party or ideology.....

It also dovetails perfectly with the emphasis on “social justice” that the faculty adopted as part of our most recent strategic plan.... In the public service context, we don’t force our students into any particular project when they fulfill this requirement, and many of them create their own....

Professor Milligan’s claims of enforced ideological conformity are a tired cliché, with no basis in the reality of what compassion actually means in the context of the law school’s participation in the City of Louisville’s initiative....

Are "compassion" and "social justice" neutral terms? Are they starkly, intentionally leftist? Maybe it's something in between: They feel neutral to those who are living within a left-wing environment, like fish in water. It's that third option that occurred to me when I read Marcosson's words: "I do not believe it ever occurred to anyone who proposed this at the law school or voted for it that it had any ideological or partisan content at all." 

"Compassion" and "social justice" are...

Politically neutral abstractions.

Familiar and comfortable to lefties, who don't notice the ideological messages they send.

Arguably neutral and chosen to convey a left-wing message that can be denied.

Intentional left-wing branding, put somewhat abstractly to stymie critics.

 

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"If corporations can’t have religious beliefs, then it follows that they can’t believe in climate change, sustainable investment or any other beliefs embraced by the corporate social responsibility movement."

Writes Keith Paul Bishop, "shocked" by the brief filed by 44 law professors in the Hobby Lobby case, in a post that Professor Bainbridge called "A truly great post that made me very happy."

"The University of California... regents opted for a political hack of no academic merit whatsoever."

"Their pick, Janet Napolitano, has presided over one disaster after another at the Department of Homeland Security."

There's every reason to think Napolitano would bring what was once considered the world's finest public university system to a new low. Her record at Homeland Security was a series of failures, stemming from a slavish devotion to her boss in the White House and an adherence to political correctness.

And they could have had Condoleezza Rice.

"Classic Linda Greenhouse awfulness."

Opines Stephen Bainbridge:

First, there's the implicit claim that she is able to divine the inner workings of [Chief Justice] Roberts' decision making processes. She knows what's in his "head" and "heart," as if she were some psychic shrink....

Speculating about what's really going on behind the argle-bargle in the written opinions is something we must do to avoid falling for propaganda. I use the term "argle-bargle" to remind you of what Justice Scalia wrote in his dissenting opinion in the DOMA case, Windsor:

[T]he real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by "'bare . . . desire to harm'" couples in same-sex marriages.

And that's just what Scalia feels is acceptable within the rigors of judicial opinion-writing. We must feel impelled to pull apart the judicial verbiage that we sometimes call the "decision" to try to see The Decision, which is to say, the mental processes that actually took place in the minds of the judges.

Of course, we can't really know. None of us, not even Linda Greenhouse, can divine the inner workings of anyone else's head. (Thank God! What a world this would be if we could!) But there is no more valuable inner working of your own head than to contemplate the inner workings of the heads of others. What fools we are if we take other people's words at face value! But — and here Professor Bainbridge is right — we are wrong if we present our speculation as the truth. If we posture as certain, those who don't like what we say can smack us down. You can't know that!

But I speculate that Linda Greenhouse — in the secret inner workings of the head that only she can access — knows her "The Real John Roberts Emerges" overstates what she knows about the inner workings of the mind of John Roberts. I presume that she has her reasons for writing like that. I presume, I don't know, but I could — if the inner workings of my mind cranked in this direction — write a blog post titled "The Real Linda Greenhouse Emerges." Or "The Real Stephen Bainbridge Emerges."

See if you can read my mind and tell why I don't think such cogitations need to be spelled out.

"Maybe I’ve been spoiled, but I feel like if this happened at Harvard Law School, a guy like Charles Nesson would be all over the opportunity..."

"... to just hop in, teach from the hip, and turn this upheaval into a Con Law experience like no other. Doesn’t Columbia Law have one professor like that? Doesn’t Columbia have any professors who want to teach just because interacting with young people and shaping minds about constitutional theory is kind of fun?"

Doesn’t Columbia even have any professors who at least want to send the message that lawprofs teach because interacting with young people and shaping minds about constitutional theory is kind of fun?

It's also interesting that at Columbia, a law professor is missing classes because she's going through a divorce. Back in the 1980s, when my first marriage broke up, it happened to coincide with a research grant that gave me a full semester off to write. I've always believed it would have been much better to have had classes to give some structure to those days.

Meanwhile, Instapundit links to Steven Bainbridge who talks about Columbia's solution of lumping 200 students together in one big class. What's the big deal if the teacher is lecturing, which, per Bainbridge, is a good idea anyway.

I suspect the students would have a few questions like: Why am I paying so much tuition if all I'm getting is something I could be watching on the Internet? And why are you paid so much money to lecture in person in front of people who could just as well be watching video of whoever is the very best lawprof lecturer on this subject?

Prof. Bainbridge rails against the "a left-liberal political agenda" of law school clinics.

He's on the appointments committee at his school and says "most of the clinical professors whose work we have reviewed this semester have pursued a model of inculcating left-liberal political values in students and deploying those students to advance left-liberal political causes."

Only most? Not all? Who were the ones who didn't? What are the forces that cause the applicants for this type of legal academic work to lean left? The "regular" professors tend to lean left as well, so it's only a question of degree, but clinical lawprof work tends to pay a lot less and to involve less pleasurable tasks than classic lawprof work.

Bainbridge's law school is UCLA. Here's a list of their clinics, including some that don't seem too lefty, like the Business Deals Clinic and Mergers & Acquisitions. But, realistically, you can see why someone with expertise practicing law in business deals mergers & acquisitions — the kind that would impress a law school appointments committee — has an incentive to stay in practice and not to shift into clinical teaching. The standard lawprof job has its obvious rewards, but why clinical teaching?

The system is founded on the reward the accrues to those with the left-liberal political agenda that Bainbridge rails against. It's baked into the cake.

The Germans are annoying Professor Bainbridge.

"To be lectured on military proprieties by a people who are free to do so because they've been able to hide behind our security skirts for decades takes the proverbial cake."

"[H]ow do we make sure law schools can teach people to think like lawyers when our hiring criteria increasingly privilege people who do interdisciplinary and empirical rather than traditional legal scholarship?"

Asks lawprof Stephen Bainbridge (via Instapundit):

When we hire people with mediocre law credentials just because they're good at running regressions or have a PhD? Or when the PhDs we hire went the law route either because law schools pay more or because they didn't have the chops to get a top job in their home discipline. Or when the PhDs we hire went the law route either because law schools pay more or because they didn't have the chops to get a top job in their home discipline.

If we were still trying to hire folks because they were EIC of a top law review, head of their law school class, had a good clerkship, and some experience in a top law firm doing real law, I'd be more confident of our ability to teach people to think like lawyers instead of teaching them to think like mediocre statisticians, sociologists, philosophers, economists, or what have you.

A question that hits hard here in Wisconsin.... where, incidentally, we're involved in a big dean search and — check it out — that salary is excellent. And you may have heard about the pension and health insurance benefits we've got here....

But wouldn't it be funny to test the dean candidate with Bainbridge's question?

About that Christmas tree.

I said it's okay — and green enough — to get an artificial Christmas tree. Then Professor Yin came in with some scary stuff about lead, and Professor Bainbridge says don't get a tree at all, and don't even get presents — give it all to charity.

What's the best solution to the Christmas tree problem?
	A real tree, a cut tree. Follow tradition!
	A nice new artificial tree. The lead problem is solved, right?
	Some sort of potted tree, that you reuse or replant or something.
	No tree at all!
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"Alan Simpson Didn't Need to Apologize."

Says Professor Bainbridge, via Instapundit ... and, as you know, I agree.

Well, you know, now, there is a solution for your apology mistakes. Levi Johnston is leading the way. Take back your apology.

IN THE COMMENTS: Meade writes:

Un-apology for Non-apology Tips for Teens of All Ages:

1. Take responsibility for having non-apologized.
2. Acknowledge that, no, you really did mean to insult, hurt, damage the other person.
3. Determine the frivolousness of the offense for which you mistakenly non-apologized.
4. Decide the best time to un-apologize for your non-apology.
5. Choose a method of un-apology.
6. Equivocate with sincere insincerity.
7. Remember this un-apology is about you and your charming dysfunctional non-apology, not the other person.
8. Go beyond "I'm sorry if my non-apology failed to fully offend you," to make the un-apology as personal and humiliating as possible.

That "20 Worst Americans of all time" list compiled by Right Wing News by surveying conservative bloggers.

It's a ridiculous list, as lawprof Stephen Bainbridge points out:

Personally, I find the collated list pretty much of a joke. It reflects the partisan passions of the moment, not anything resembling a serious verdict of history.

But it was predictable that the list would be ridiculous, because of the methodology:

All [43] bloggers were allowed to make anywhere from 1-20 selections. Rank was determined simply by the number of votes received. 

So, if everyone put Jimmy Carter or Barack Obama on the list, he'd come out as the worst person in American history. (The expression "of all time" highlights the silliness of the list. When in history do we start having "Americans"? 1776... 1787... or thereabouts. There were no terrible Americans in the Middle Ages or ancient times. Saying "of all time" makes you sound like a bombastic know-nothing. (It's an expression we've been using jocosely, chez Meadhouse, ever since this happened.)

In fact, only 25 of the 43 put Jimmy Carter on their list, and that was enough to put him at #1. Obama was second with only 23 selections. They're easy to think of, so they got on a lot of lists. (Surprisingly few, actually.) More obscure but more evil Americans were less likely to come to mind, but would probably have raked in votes if the surveyed bloggers had been given a list to chose from.

So, tweak the methodology. Have 2 stages where you first take suggestions for who should be on a list, then have the voters pick however many they want from the list. If I have to pick 20, I may need to pad it out with individuals who aren't really that bad. Or give everyone 20 votes and let them pile the votes on their choices in whatever proportion they want. You could dump 15 votes on Obama and 5 on Carter, for example.

By the way, oddly enough, my name appears in the first comment over there at Right Wing News:

What an [sic] spectacularly ignorant list. I'm a progressive, and I could do a better job of being a right-wing butthole than the people who voted.....

Michael Moore over Upton Sinclair or Lincoln Steffens? Jane Fonda over Paul Robeson? Not one member of the Warren Court? Not Theodore Roosevelt? Where's Daniel Ellsberg or Seymour Hirsch-- or Julian Assange?

This is why we make fun of your lack of intellect, folks-- you can't even identify the people who've done the most damage to your belief system. It would be as if progressives compiled a list of the most vile and bigoted conservatives in history and picked Wally George, John Schmitz, Ann Althouse and Orly Taitz.

... whoever they are.

If you click over to Bainbridge, you'll see his comments on each of the individuals on the RWN list. Bainbridge also makes his own "Worst Americans" list, with a decided emphasis on traitors. He puts Aldrich Ames and Benedict Arnold at #1 and #2.

Now, for some reason he puts Paris Hilton at #11. Huh? I guess he thought there had to be a female on the list and that was the best he could do. He called her the "personification of the celebrity obsessed culture." Isn't the obsession with celebrities the fault of the people doing the obsessing? (Let's take responsibility for our own faults. It's the conservative way, I've heard.)

In an update, he defends his #11 selection of Hilton "as one of the earliest examples of how it is now possible in our culture to be famous merely for being famous without having any significant merit or worth."

Earliest examples? Earliest examples??!!! If Paris Hilton seems like an early example, you might not know so much about history.  The definition of "celebrity" as someone who is "known for his well-knownness" appears in a book that came out in 1962 — "The Image: A Guide to Pseudo-events in America" by Daniel J. Boorstin.

Can we think of some earlier examples of famous-for-being-famous Americans? Who was Boorstin writing about in 1962? We had empty celebrities then, for sure. Somebody motivated Andy Warhol to say "In the future, everyone will be world-famous for 15 minutes." Or is that why we can't remember the empty celebrities of the past? Their fame-time ran out, and we forgot.

And how about giving Paris Hilton credit as an entrepreneur? You try creating a compelling character out of yourself and making money out of that product? The fact is, she's a model and an actress, and the way she annoys people like Bainbridge and seems dumb and pointless is part of the fabulous image-product that has sold so well.

"Why I gave up on Socrates and why I think teaching students to think like lawyers, as Kingsfield claimed to do, is a bad idea."

Professor Bainbridge lectures about lecturing.

Democratic art.

Yesterday, I complained about the Wisconsin quarter. An emailer wrote:

If I do collect that one at all it will be like the daffy great-aunt, relegated to some attic room. Most of the state quarters have been, shall we say, "unfortunate," but that's what you get with a popularity contest amongst amateur designs. Compare that to the spring 2005 version of the nickel.

Yes, the new nickel is excellent. I note the entire bison is pictured, not just a head. The the new Jefferson profile is even less that a head now. Still, it looks nice, and it was designed by artists. Art cannot really be done by a democratic process.

For a demonstration of how bad art produced by democracy is, I strongly recommend "Painting by Numbers: Komar and Melamid's Scientific Guide to Art." This is from the Library Journal review:

In December 1993, the Russian emigre art collaborators Komar and Melamid began a statistical market research poll to determine America's "most wanted" and "most unwanted" paintings. Since then, the whimsical project has spread around the world. Polls in the United States, Ukraine, France, Iceland, Turkey, Denmark, Finland, Kenya, and China revealed that people wanted portraits of their families and always "blue landscapes." After conducting research, the pair paint made-to-order works that meet the wanted (landscape) and unwanted (abstract) criteria; they follow up with town meetings as virtual performance pieces.

The paintings in the book, produced to give people what they've said they wanted, are hilarious.
For a brilliant collection of ideas about art and facts about artists, I recommend David Markson's "This Is Not a Novel." It contains the too-snobbish Schoenberg quote: "If it is art it is not for all, and if it is for all it is not art." It also contains a quote, from Diego Rivera, at the other end of the spectrum of opinion about art: "Art which is not propanganda is not art."

UPDATE: Komar and Melamid have a terrific website, where you can read their surveys and look at the various paintings. The material is well-organized. You can click through all the countries on a particular question. I enjoyed seeing what color was the most popular in each country. It's always blue! And the second most popular color is nearly always green. Is that because we've adapted to the natural world?

Komar and Melamid (with David Soldier) also have a most wanted songs project, as one of my students just pointed out. Unfortunately, you can't listen to the most wanted song at this website, but here's their description of it:

The most favored ensemble, determined from a rating by participants of their favorite instruments in combination, comprises a moderately sized group (three to ten instruments) consisting of guitar, piano, saxophone, bass, drums, violin, cello, synthesizer, with low male and female vocals singing in rock/r&b style. The favorite lyrics narrate a love story, and the favorite listening circumstance is at home. The only feature in lyric subjects that occurs in both most wanted and unwanted categories is “intellectual stimulation.” Most participants desire music of moderate duration (approximately 5 minutes), moderate pitch range, moderate tempo, and moderate to loud volume, and display a profound dislike of the alternatives. If the survey provides an accurate analysis of these factors for the population, and assuming that the preference for each factor follows a Gaussian (i.e. bell-curve) distribution, the combination of these qualities, even to the point of sensory overload and stylistic discohesion, will result in a musical work that will be unavoidably and uncontrollably “liked” by 72 plus or minus 12% (standard deviation; Kolmogorov-Smirnov statistic) of listeners.

UPDATE: Prof. Bainbridge responds to this post, adding a point, which he predicts I'll agree with, and I mostly do. Art is best produced by artists, and it is usually best that they act separately from government. But I don't support the complete separation of art and government, because government must have its coins and paper money, monuments, signs, buildings, and so forth. In producing these things, it is best to rely on artistic experts and not simply put things up for a vote. I want such things to be beautiful, and it seems that many of the people who are doing the voting are thinking about things other than beauty, such as the representation of corn on the quarter. As to trusting markets to produce art, as Prof. Bainbridge recommends (and I agree), we end up with a lot of trashy but decently good pop art, and there isn't anything terribly wrong with that (although I insist on zoning to protect me from trash of the architectural kind). There will still be artists who chose to produce high art, and some people will pay money to some of them some of the time.

Graphing politics.

Professor Bainbridge recommends Chris Lightfoot's political survey (which he especially likes because it aligns him with Margaret Thatcher). If you're ready to slog through 75 questions, take the survey. Here are my results:



Surprised?

UPDATE: Email exchange with a person who read my question and answer page:

QUESTION: You disagree that "Aggressive foreign policies can put a stop to international terrorism"?!!

MY ANSWER: I took the word "stop" literally!

This goes to show that there is a lot happening at the level of question interpretation. In fact, I picked the "no opinion" answer to many questions, because I did not think the question could be answered without more information or a clarification, which I'm sure dragged me toward dead center (where I would have been happy to have ended up!).

FURTHER UPDATE: I want to abandon the notion that the center of this graph represents moderation. Just look at where Stalin appears on that graph. How did that happen? Someone with a particularly toxic mix of right and left ideas and of idealism and pragmatism, quite extreme ideas in all four categories, could average his way into the center. That's a huge problem with visualizing political ideas spatially!

Is this the way to defend abortion rights?

Barbara Ehrenreich attempts to write a strong op-ed in favor of abortion rights. Her final paragraph is this:

Choice can be easy, as it was in my case, or truly agonizing. But assuming the fetal position is not an appropriate response. Sartre called this "bad faith," meaning something worse than duplicity: a fundamental denial of freedom and the responsibility that it entails. Time to take your thumbs out of your mouths, ladies, and speak up for your rights. The freedoms that we exercise but do not acknowledge are easily taken away.

Interesting imagery there. You wouldn't want to "assume the fetal position," of course, because you'll be quite vulnerable to people who would like to take away your rights--like a fetus.

Okay, but let's look at the rest of this piece and examine the tone and see how helpful it is. Ehrenreich is irked that so many women, even those who support abortion rights, still feel a lot of ambivalence about abortion. She complains that the HBO show "'Six Feet Under,' which is fearless in its treatment of sexual diversity, burdens abortion with terrible guilt." She puts the words "liberal media" in quotes as she wonders why they're not helping the cause of abortion rights by portraying abortion as an "acceptable option." She complains about the women who have abortions because of a health defect in the fetus and think they are superior to women who have abortions for economic reasons.

It would be unfair, though, to pick on the women who are in denial about aborting "defective" fetuses. At least 30 million American women have had abortions since the procedure was legalized, mostly for the kind of reasons that anti-abortion people dismiss as "convenience" - a number that amounts to about 40 percent of American women. Yet in a 2003 survey conducted by a pro-choice group, only 30 percent of women were unambivalently pro-choice, suggesting that there may be an appalling number of women who are willing to deny others the right that they once freely exercised themselves.

Her point is: people need to be honest. If you would have wanted abortion as an option when you were very young or in economic need or if pre-natal tests showed the fetus suffered from a serious health problem, you ought to think hard before denying that option to other people. It's much easier to think about abortion in the abstract and to adopt a severe position when you are not facing the occasion for making the decision. This is an important point, but it doesn't go as far as Ehrenreich thinks it does. It shows why the right to an abortion ought to remain intact, as a decision made by the individual who is facing the pregnancy. But it doesn't show why people should refrain from making moral judgments about abortion. It doesn't justify telling people to grow up and start promoting abortion as a guilt-free option. And there is nothing "dishonest" (to use Ehrenreich's word) about having an abortion and also believing it was wrong.

The ambivalence that women maintain about abortion ought to be seen as a reason to support abortion rights. If women had no qualms and misgivings and serious moral struggles about abortion, it would make more sense for government to deny them the right to choose. It is precisely because women experience torment over choosing abortion that people who feel abortion is wrong can reject the paternalism of an abortion ban. Supporters of abortion rights should not try to sanitize the difficulty and the guilt out of abortion. It is the very difficulty of the decision that makes it the domain of the individual.

And by the way, let me make a side point about Ehrenreich's use of the word "grubby":

I was a dollar-a-word freelancer and my husband a warehouse worker, so it was all we could do to support the existing children at a grubby lower-middle-class level.

"Grubby" means:

1. Dirty; grimy: grubby old work clothes. 2. Infested with grubs. 3. Contemptible; despicable: has a grubby way of treating others.

Being lower middle class doesn't make you dirty or despicable.

UPDATE: Prof. Bainbridge quotes my paragraph that ends "It is the very difficulty of the decision that makes it the domain of the individual" and asks: "And how would you differentiate infanticide or euthanasia of the elderly, both of which presumably present the actors with moral qualms too? Should they be in the realm of the individual, as well?" I understand and respect the pro-life position on this issue, even though I don't think abortion should be re-criminalized. Those who are strongly pro-life, like Prof. Bainbridge are similar to Barbara Ehrenreich in their exasperation with the large number of people who take a middle position. Most Democratic candidates take the middle position too: They say abortion is wrong but should be legal. In the case of candidates, one has to wonder whether they have a reason for their position other than the desire for political gain. But what about all these other people in the middle? Are they just not thinking clearly? Ehrenreich thinks these people ought to abandon the idea that abortion is wrong, because if they don't, abortion rights could be lost. Bainbridge thinks these people ought to face up to the consequences of their perception that abortion is wrong and make it illegal.

I am trying to say something about the middle position, which views abortion as wrong, but wants it to remain legal. Surely, making it illegal won't make it go away. What is the best way to reduce the number of abortions? I believe the most important thing is to foster moral decisionmaking in the individual. You could impose a lot of rules from above, which people would resent and look for ways to break. Abortions would continue, of course, and those denied legal abortions would feel defiant and oppressed about it. Women would feel outraged that the government was intruding its will into the interior of their bodies. I would prefer to see pro-lifers reorient themselves and, instead of working to force women to carry out their pregnancies, work to convince women to see the reason to choose to do so.

As to how I would differentiate infanticide or euthanasia of the elderly: Pregnancy is a great physical intrusion on the body of a single individual. If a decision is to be made, it is best to leave the decision with the person whose body is being subjected to that intrusion.

ADDED ON 7/28: No response from Prof. Bainbridge. Or, really, from anyone who stakes out the extreme ends on the abortion issues. I maintain a semi-fantasy that I'm talking to everyone across the whole spectrum of positions on this issue that people are so passionate about, yet I realize that the people at the extreme ends will almost surely stay exactly where they are. Realistically, I know I can only hope to reach people in the middle on the abortion issue, but I think this is where most people find themselves. We can't help referring to the people who speak from the extremes, but perhaps we can't seriously expect them to engage with our responses to them. LATER THE SAME DAY: Prof. Bainbridge has a response up now.

ANOTHER UPDATE: Patrick Brown (in the Psychology Dept. at University of Western Ontario) emails, raising questions about the 30 million/30 percent/40 percent numbers Ehrenreich uses as a basis for her analysis:

I was struck by Ehrenreich's comparison of a snapshot with a running total. The snapshot is a 2003 survey that suggests 30% of women in the US were unambivalently pro-choice. The running total produces the proportion of women who have had abortions since the procedure was legalized 30 years ago.

The problem with this method is that the pool of women who are "eligible" to have abortions was not constant over those 30 years - some moved out of the pool and others moved in. This matters when you're calculating the proportion. A back-of-the-envelope calculation suggests the following. Assume Ehrenreich's claim that "30 million = 40% of American women" is true at any one time. Then 100% would be 75 million. (Since the 2001 census showed 107 million women lived in America, I assume that the 75 million refers to women of child-bearing age.) Now, suppose that lifespan = 80 years so that each year 1/80th of women leave and another 1/80th join the pool (I think that will serve as an approximation). That's about 940,000 per year. Over 30 years, that's 28 million. Added to the 75 million base, that means that the pool of women who might have had abortions over the past 30 years has included 103 million individuals. If this logic is roughly correct, then we get a value for the proportion of eligible women who actually had abortions that is very close to the proportion in the survey who are unambivalently pro-choice: 30/103 = 29.1%.

So it seems to me that Ehrenreich's claims were not only elitist, they were wrong arithmetically, too.

I asked our blogging sociologist Jeremy Freese about the math, and he wrote back:

It's a smart point, but it's hard to know. There is too much missing information in Ehrenreich's column to figure out what's going on with that number so precisely. As he notes, thirty million is not 40% of American women. It's fairly close to 40% of women aged, say, 14 to 50 today. You could count who was in the abortion window over the past 30 years as abortion-eligible, but that's a little misleading, as some of those women were only in that window for a short period of time in their mid-to-late 30's. For that matter, some substantial number of the women who have not had abortions yet will have abortions.

The bottom line is that Ehrenreich's stat is impossible to figure out without knowing more about its provenance, since she can't literally mean all American women. I don't know where the numerator of her statistic (the 30 million) comes from, either. Which is not to say that it's wrong. Her abortion attitudes figure should be adjusted to the same population, whatever it is, although I don't know if it would make any difference. But there are undeniably a lot of unambivalently pro-choice women who have never had abortions, so this is all kind of moot anyway: if there were 30% of women in-some-population who were unambivalently pro-choice and 30% who had abortions, this would not indicate the absence of hypocrisy, just that the number of unambivalently-pro-choice-no-abortion-women was equal to the number of non-unambivalently-pro-choice-women-who-have-had-abortions.

ANOTHER UPDATE: Several emailers have noted that the assertion that "[a]t least 30 million American women have had abortions since the procedure was legalized" seems not to take into account that some women have had more than one abortion. I assume that medical records are private enough that we don't know the actual number of women who have had at least one abortion. I haven't tried to research the abortion statistics, but I have a feeling that a lot of assertions about statistics are made in the arguments for and against abortion. This would be a good subject for a "How to Lie With Statistics" sort of article, I think. Email me if you know of one.

Edwards ... and those terrible trial lawyers.

Yesterday, I set my all-time record for least posting: a single line. I wonder why the big announcement of Kerry's VP pick did not inspire me to write? Edwards was a choice I expected and approve of. We talked about it a lot in my house as we watched a different news channels last night. Most of my comments were about what a great speaker Edwards is compared to everyone else we've been hearing: Kerry, Bush, and Cheney. Both Kerry and Bush require some patience to listen to. The return of Edwards was quite a relief, a bit like the recent reexperiencing of the speaking skills of Reagan and Clinton. People on TV keep commenting on how good Edwards looks. More important is how well he speaks. Heard in my house: "He's the Great Communicator."

The other subject relating to Edwards that keeps coming up is the fact that that he was a--gasp!--trial lawyer. Are the news media getting enough play out of this? Attempts to stir up general anxiety about that fact alone are getting old already. Anyone who wants to raise this as a problem had best do it behind Edwards' back, because if he's around to respond, he will respond brilliantly. An attempt to drag Edwards (and Kerry) down by slurring lawyers is likely to end up improving the image of the whole legal profession. And after the events at Abu Ghraib and the Supreme Court's push-back against the most extreme assertions of unchecked power by the Bush administration, a return to law seems like a good theme.

UPDATE: A lawyer responds:

I disagree with your contention that Edward's profession is not a liability. Its significant that you call him a trial lawyer. Actually, he's a personal injury lawyer. The difference [is] the difference between pro-choice and anti-life, rain forest v. jungle, homeless v. vagrant, and many other formulations. A trial lawyer doesn't sound so bad - after all, Perry Mason was a trial lawyer! A Plaintiffs Personal Injury lawyer, as Dave Barry can tell you, is a shark.

Count on the GOP, if they're smart, to use his proper title. Count on them to solicit a lot of Doctors to oppose Edwards. Count on them to tell the truth, that we've never heard of a PI lawyer who didn't claim to " fight for little girls who were horribly mistreated." ( It's always a little girl.) Count on them to tell the Republic what percentage of consumer items goes towards lawsuit insurance. It won't be that hard.

Is "trial lawyer" a euphemism that the other side will gain ground by declining to use? I don't think there is a "proper title" here or that ordinary people are going to become excited if they are told that he calls himself a "trial lawyer" but really he's a personal injury lawyer. It's just not that alarming. It even sounds nice--personal. Now, "shark" is alarming, but it's hardly a "proper title." My point is that even if being a personal injury lawyer is something of a negative for some people, the issue is easily overplayed, beyond its significance to ordinary voters, and Edwards has a comeback that is so appealing and powerful that those who try to make headway are giving him an opportunity to display his skills and to make lawyers seem noble. Last night, C-Span re-ran a 2001 interview in which Edwards was asked about being a trial lawyer and his response was so perfect, so measured and balanced as he justified the role of the personal injury lawyer in particular cases with respect to truly culpable defendants. He is extremely well-prepared to respond to the kinds of arguments you cite. I'm not saying these arguments shouldn't be raised in some well-thought-out and substantial form, but the bare fact that he's a trial lawyer/personal injury lawyer is not good enough.

By the way, where did this idea that "rain forest" is a euphemism for "jungle" come from? I've heard that before, but it is just wrong. A rain forest is not a jungle.

ANOTHER UPDATE: Prof. Bainbridge is surely right that there are plenty of people whose support for Bush will be reinforced now that there's a trial lawyer on the Democratic ticket. And maybe some voters who could tip one way or the other could be influenced to tip away from Kerry because of some issues that have to do with trial lawyers. But I don't think the swing voters are going to be tipped by the mere label "trial lawyer," which is already overplayed. Something more substantive is needed, but Edwards is very good at dealing with these issues in a balanced way that would probably not strike moderates as anti-business.

Titanic vs. Lord of the Rings. Prof. Bainbridge is responding to my challenge about whether, if there were an ensemble acting Oscar, LOTR would have won it and neither Titanic nor Ben Hur would have, thus making LOTR the biggest Oscar-winning movie ever, with 12, not just 11.

Bainbridge points out that LOTR won the SAG ensemble acting award, but Titanic didn't. The Full Monty did!

I realize now how complex this what-if question is. Bainbridge points out that the SAG ensemble award may be essentially its version of best picture: SAG only gives acting awards, so ensemble works as a way to recognize the whole picture. If that's so, and if the Oscar voters tracked the all-actor SAG voters, we could infer that the ensemble Oscar would have gone to Titanic. But it is a different group of voters, as we can tell from the way the Oscars didn't care at all about The Full Monty.

Bainbridge also theorizes that an ensemble award would be used to honor casts in movies that did not feature one or two dominant stars, that is "true ensembles." Voters might conceive of the ensemble award as a way to make up for the fact that films with large crowds of actors don't have a fair shot at the individual actor awards. Clearly, LOTR had many great actors in it, but they were in relatively small roles. But small roles can earn supporting actor awards, and it's notable that no one even had a nomination in a supporting category.

I can't speak for Ben Hur, because I've never seen it, but I'll accept that Charlton Heston was an overriding star there, and maybe the cast of thousands types would not seem to deserve any recognition.

But how about Titanic? Bainbridge says look at the posters: it's all about Kate Winslet (the sublime Kate Winslet, whom true Peter Jackson fans will love from Heavenly Creatures) and Leonardo diCaprio. But what about Kathy Bates (people love her), Victor Garber (the New Yorker thought he was the best thing in the film), Billy Zane (an acquired taste), David Warner (you want an English actor of long reputation, look at this), Francis Fisher, Jonathan Hyde (deliciously evil as Ismay), Bill Paxton, and the beloved old actress Gloria Stuart?

I say it would have won an ensemble award. What was the real competition? Not The Full Monty. Not Boogie Nights (because of the subject matter). Maybe L.A. Confidential. Considering the extreme love of the acting in Mystic River, I'd say that the ensemble award for Titanic would have been more likely than for LOTR.

UPDATE: Christopher Althouse, who's a devoted student of film, writes: "I think Titanic and Ben Hur would both have won ensemble awards, and to the extent that they could have not won, I don't think it's a given that LOTR would have won."