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As I’ve mentioned before, I’m quite happy with a state of the world where dogfighting is banned but foie gras isn’t. But I’m not persuaded that the good professor has made the case for a principled distinction. Discussion of this (and of the almost entirely unrelated Larry Craig case) after the jump:

Bainbridge first argues on the libertarian home court: “Even if we accept that limitation, however, a case could still be made for banning dogfighting and other blood sports. There are documented cases of trained fighting dogs attacking people.”

This seems to prove too much. There are documented cases of trained dogs of the non-fighting variety attacking people. We solve that through liability rules. Still, I accept it as a rationale for a criminal ban, so long as one accepts the consequences that the same reasoning opens the door to barring smoking in places of public accommodation, a matter that I have never managed to work the same outrage about as Walter has. But perhaps that’s my own confirmation bias showing there, as, notwithstanding my grumbling about the attempts of the plaintiffs’ bar to use the litigation mechanism to drive tobacco companies out of business, I’d be quite happy to live in a smokeless world if such a thing were feasible.

The idea that dogfighting can be banned as a proxy against gang activity also seems attenuated, much like the silly proposals we hear for banning the wearing of pants with too low a waistline.

But let’s be fair. Bainbridge is more attached to the idea that the distinction between dogfighting and foie gras is acceptable because of “tradition.” Dogfighting bans came about in 1835. “The debate over foie gras is newer and far less well settled.”

This seems a just-so story. If we can justify banning dogfighting today because it was banned in 1835, then tradition tells us that we should be maintaining kashruth and avoiding pork entirely. (I was going to say foie gras, but there appear to exist rabbis who will certify foie gras as Glatt kosher.) And on what principled grounds was dogfighting banned in 1835 after hundreds of years of tradition permitting dogfighting (and, for that matter, bear-baiting, banned by the same act that banned dogfighting)? That’s before we get to the countless examples of centuries of tradition wrongly infringing upon liberty, as in the subjugation of women and racial minorities throughout the Western world until generations within living memory.

Indeed, Bainbridge is forced to concede in the last sentence of his article that “evolving understanding of the moral order [may] eventually justify banning production” of foie gras, and thus punts on the question of whether there can be a principled distinction. And so we are again left with nothing but personal preferences, but if personal preferences can establish the moral order, and the moral order can trump liberty, what remains of liberty?

Separately, speaking of tradition, the moral order and its relationship to the law, and speaking of the feminist indictment of tradition, Amber Taylor quotes anonymous blogger Esquivalient’s unique take on the Larry Craig case:

By the cop’s own admission, he (the cop) “pumped his foot slowly up and down in response.” In other words, Craig asked for sex using an arcane code extremely unlikely to “alarm, anger, or disturb”—according to the the equally arcane code defining disorderly conduct in Minnesota—an uninitiated fellow-lavator, and the cop knew what it meant and said yes. …

What I find more astonishing is the definition of “disorderly conduct.” By this reckoning, ten years and thirty pounds ago, I had disorderly conduct foisted upon me approximately…let’s see…15,923 times.

Per week.
Give or take.

But, even if they’re unwanted advances, that’s the natural order of things, right? Whereas men have to be protected from the unwanted advances of men at all costs (why? because they’re worried they just might succumb to a particularly persuasive piece of foot telegraphy?). …

I derive comfort from the way the cop’s meticulous narrative continues: “he exited the cubicle…without flushing.”

If they want to arrest, sentence, and bring him up on Ethics charges on that basis, I’m cool with it.

And Dale Carpenter has good analysis at the Volokh Conspiracy. William Dyer has a different take, as well as links to others, including my cousin Garance.

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Update: I’m late to the discussion apparently. Jim Henley, Julian Sanchez (who takes the hard-line view), and Megan McArdle (and Part 2); McArdle points to vegetarian libertarian Robert Nozick’s take.

Update from Alex Tabarrok: “After attending dogfights it’s rumored that on some nights Michael Vick would continue his bloody activities by dining on cow’s flesh. No word yet on whether prosecutors will be seeking additional prison time.”

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• Arguments Merck won’t be allowed to make in Madison County Vioxx trial. [Point of Law]
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When the letter came from City Hall threatening punishment if he continued to serve foie gras at his North Side restaurant, Doug Sohn framed the warning and set it beside his cash register.

And he kept serving the fattened duck liver without a care. …

The city has sent warning letters to nine restaurants believed to have served foie gras but issued no citations, Chicago Department of Public Health spokesman Tim Hadac said. Letters are sent after a citizen complaint and are followed by a visit after a second complaint. Visits that turn up evidence of the banished dish can result in fines from $250 to $500.

But Mayor Richard Daley is no fan of the ban–just this week, he called it “the silliest law” the City Council has ever passed.

Perhaps that helps explain why the Health Department is in no rush to boost their compliance checks.

“In a world of very limited public health resources we’re being asked to drop some things so we can enforce a law like this,” Hadac said. “With HIV/AIDS, cancer, West Nile virus and some of the other things we deal with, foie gras is our lowest priority.” …

Some owners have tiptoed around the ban by serving the dish under alternate or code names (”I’ll have the special lobster” will supposedly score foie gras at one restaurant), but renegades say they’ll do what they must to fight City Hall. …

At first, [restauranteur David Richards] said, restaurant owners worried their access to foie gras would be limited, and they crafted plots to keep their supply flowing–like getting it mailed to a suburban address for weekly covert pickups. Such cunning turned out not to be necessary, he said. Richards still gets foie gras from the same distributor he always did, and no one seems to care that it is still on his menu.

“We look at it as a choice,” he said. “We live in a free-market society and if people are truly offended they won’t buy it. If they don’t buy it, I won’t buy it.”

Instead, he said, his foie gras sales have climbed, making him even less inclined to heed the law. …

Many of those most vocally opposed to the ban have coolly stepped away from the debate by ending their foie gras sales or at least coming up with names clever enough to obscure the issue. Available on the menu at Copperblue, for instance, is “`It Isn’t Foie Gras any Moore’ Duck Liver Terrine”–a testy nod to the alderman who sponsored the foie gras ban.

Though the $16 cost seems closer to the price of foie gras than simple duck liver, Copperblue chef and owner Michael Tsonton would not say whether he had merely renamed the illicit dish. In September, when still serving foie gras, he got a warning letter that he said he hung in his kitchen.

(Josh Noel, “Let ‘em eat foie gras, they declare”, Chicago Tribune, Dec. 22 (via Noonan, who says he was thinking of opening a restaurant called “Foie Gras Fried In Trans Fat”)). The Tribune story lists the nine restaurants that have gotten warning letters, and I can personally vouch for one of my favorites, Bin 36, where a date and I had a fine meal during a January 2005 blizzard.

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Animal rights activists have asked a state judge to stop foie gras production in New York, saying the ducks used are overfed to such an extent that they are diseased and unfit for sale under state law.

The lawsuit, if it succeeds, could spell the end of foie gras production in America, a goal animal rights groups have long sought. The two Sullivan county farms that are defendants in the suit are the only foie gras producers in the country, other than a Northern Californian foie gras farm that may shut down under a California state law banning the industry….

The first challenge the suit faces is to convince a judge that the animal-rights activists who filed the suit have suffered enough harm to allow them standing to sue. The plaintiffs in yesterday’s suit offered several ways that they had been harmed by the foie gras industry.

One plaintiff, Caroline Lee, claims that the state’s regulatory departments are misspending her tax dollars by inspecting birds raised for foie gras production without concluding they are diseased. Another plaintiff, an animal rescue organization, Farm Sanctuary, claims its employees have been “aesthetically and emotionally injured” by being exposed to the “suffering” of abandoned ducks that they rescue from foie gras production. Another plaintiff, a New York restaurateur, Joy Pierson, claims that her decision not to serve foie gras has caused her to lose customers at her two Manhattan restaurants, Candle 79 and Candle Café, according to the complaint.

(Joseph Goldstein, “In New Lawsuit, Activists Seek Ban On Production of Foie Gras in N.Y.”, New York Sun, Nov. 16). More: Nov. 10, Nov. 2, Aug. 18, Jun. 8, Apr. 27, etc.

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Yours is the website I have been continuously reading the longest and the one I most identify with. So I figured I’d tell you something. I recently celebrated the birth of my first son, Michael Gabriel. And he will not go through life padded in Nerf.

He is going to play dodge ball and tag.

I will let him eat trans fats and foie gras.

He can play Grand Theft Auto when he is old enough.

He will know that medicine is a risky business that doesn’t always provide perfect cures.

He is going to be able to shoot a gun well by the time he is 21 and I will take him to get his gun license myself.

Most of all, I will teach him that life is what you make of it and if he fails at something, he will have no one to blame but himself.

Loving father and non-victicrat,

Greg Dwyer

Tags: foie gras, Grand Theft Auto, Oregon, personal responsibility

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