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Be Careful Believing Your Own Metaphors:

I've cautioned students against using metaphors; though they make writing more vivid, and sometimes more persuasive, they often obscure more than they reveal. Part of the problem is that they are literally false -- if they were true, they wouldn't be metaphors. Sometimes the literal falsehood reveals a deeper truth, but sometimes it's just plain false.

A case in point, from the debate over organ markets: I've often run into the argument that "We don't let prostitutes sell their bodies, so we shouldn't let people sell body parts." (For a print example, see Margaret Engel, Va. Doctor Plans Company to Arrange Sale of Human Kidneys, Wash. Post, Sept. 19, 1983, A9, quoting then-Representative Al Gore.) Sounds logical, no?

Except that "selling your body" is a metaphor. Prostitution doesn't actually involve sale of the body as a good. Rather, it involves the sale of services that use the body.

No problem, some might say; that's obviously implied by the phrase. But if we replace the literally false phrase with the literally accurate one -- "We don't let prostitutes sell services that use their bodies, so we shouldn't let people sell body parts" -- we notice something wrong with the argument: Prostitution is actually the exception rather than the rule when it comes to selling services using one's body. We often let people sell services that use their bodies; consider, among many others, people who work as furniture movers, nonsexual masseurs, non-sexual models, or professional athletes.

Of course, now that we're replacing false descriptions with accurate ones, we can clarify things further in a way that properly describes what's going on with bans on prostitution: "We don't let prostitutes sell sexual services, so we shouldn't let people sell body parts."

But once we've clarified things, we see that the analogy is entirely inapt: The problem with prostitution has little to do with commercialization of the body as such, and everything to do with commercialization of a specific kind of bodily services (sexual services). This is why being paid to use one's hands to massage someone's back is legal even though being paid to use the same hands to massage someone's genitals is a crime. And commercialization of sexual services has nothing at all to do with organ transplants.

Now of course this doesn't rebut the various other arguments against compensation for organs (though I've tried to rebut them in other posts, linked to below). But it does, I think, rebut this argument. And it illustrates the importance of (1) looking beyond the metaphors to the reality that they supposedly portray, and (2) using metaphors only when one has assured oneself that the metaphor (despite its literal falsehood) sufficiently matches the reality.

Silicon Valley Jim:
A man's reach should exceed his grasp, or what's a metaphor?
1.17.2007 6:11pm
ziemer (mail):
here are some good 7th circuit quotes on the topic:

"In law as in The Mikado a metaphor must not be confused with the real thing." Russell v. OWCP, 829 F.2d 615, 616 (7th Cir. 1987);

"'The most ironclad written contract can always be cut into by the acetylene torch of parol modification supported by adequate proof.' This is not reasoning; it is a conclusion disguised as a metaphor (cite omitted)." Wisconsin Knife Works v. National Metal Crafters, 781 F.2d 1280, 1286 (7th Cir. 1986).

"We deprecate decision by metaphor." Encyclopedia Britannica, Inc., v. C.I.R., 685 F.2d 212, 217 (7th Cir. 1982).
1.17.2007 6:20pm
Lev:
Eh, Volokh, sometimes your clarity is brighter than the sun.
1.17.2007 6:20pm
jp2 (mail):
though they make writing more vivid, and sometimes more persuasive, they often obscure more than they reveal.

Somewhere in The Mill on the Floss, George Eliot makes this point very nicely.
1.17.2007 6:22pm
Ryan Waxx (mail):
The way I've always thought of it is that a metaphor can (if used correctly) illustrate an idea, but it is in no way proof.
1.17.2007 6:24pm
Ragerz (mail):
Volokh is just plain wrong here. At least under some interpretations of the metaphor in question.

The idea behind comparing selling organs to prostitution is the idea that not all things should be commercialized. That organs, like sex, are and should be considered personal and basic to an individual. That it is an affront to dignity to allow these things to be sold. That those with economic power should be able to use that power to abuse those lacking economic power when it comes to these very basic things.

The distinction between service versus commodity that Volokh makes has nothing to do with anything. The point is that these things are entirely personal, and should not be seperated from a fully autonomous individual through economic coercion. Both prostitution and a market for body parts involve the same thing. Economic coercion to strip someone of something that is very basic to themselves and their identity.

While Volokh's point about prostitution being a service misses the point altogether, it should be noted that prostitution is not merely a service. In some sense, the client of a prostitute does possess the prostitute's body, to the extent that they exert a large degree of control over that body. So, why prostitution is not the "selling" of one's body, it is like the "renting" of one's body. It is very different, than say, having a mechanic fix your car.

I doubt that Volokh thinks prostitution should be illegal. Most libertarians, and I believe Volokh is a libertarian, think prostitution should be legal. Obviously, the metaphor is not going to persuasive (and in this case, even understandable) to Volokh if he doesn't get why prostitution should be illegal.

Most libertarians just don't "get it" when it comes to the idea that certain things should not be commodified. The libertarian utopia, it seems, is to have market processes dominate all areas of life. So, it isn't suprising that Volokh does not understand this metaphor between prostitution and selling organs.
1.17.2007 6:27pm
Ryan Waxx (mail):
And that's an example of what I mean. If you need a couple of paragraphs to explain the idea the metaphor is supposed to illustrate, then the metaphor probably wasn't a useful method of description in the first place. Would have been more efficient to just write the paragraph right from the get-go.
1.17.2007 6:38pm
AF:
I don't think you can draw such a bright line between "literally false" metaphors, which are dangerous, and "literally accurate" descriptions, which are safe. In fact, nothing is safe -- given the irreducible imprecision of language, there's always a risk of making a faulty argument based on inapt characterizations of reality. Your post perfectly illustrates this point.

You object to characterizing prostitution metaphorically as the selling of bodies, because "literally" it is the selling of services. But the word "services" is a vague term that obscures a factual point about prostitution that is captured by the metaphor: Prostitutes sell other people the right to physically touch and possess their bodies. This is different from most other service providers, who generally retain physical control over their own bodies while performing services. In this sense, prostitution and organ-selling are more similar than you recognize. The analogy is not "entirely inapt."

Interestingly, by defining prostitution as ordinary service provision, you've made a move similar to the one your criticize. You've chosen a characterization of reality that accentuates the point you're trying to make -- i.e. that prostitution has "nothing at all to do with organ transplants."

Not that there's anything wrong with that. In fact, there's no way around it. But it's not a question of using metaphors versus not using them. To ensure that our arguments are good, we must always assure ourselves that our language -- metaphorical or not -- "sufficiently matches the reality."
1.17.2007 6:56pm
Ragerz (mail):
Ryan,

It only takes a couple of paragraphs for those who don't "get it." Most people can easily understand the metaphor between prohibitions on prostitution and prohibitions on the selling of organs.

Obviously, if you are someone who doesn't understand the prohibition on prostitution, the metaphor is not going to help you. But that is a minority of the population. Most people "get" why prostitution is prohibited, and thus are likely to "get" the metaphor without a couple of paragraphs of explanation. Thus, the metaphor is an efficient means of communication.

Obviously, a metaphor is not a proof. It is just an efficient means of communication for those who understand it.

The metaphor in this case is a very good one.
1.17.2007 6:57pm
Goober (mail):
Yeah, color me confused by this point. It seems the prostitution example is meant to be taken literally, in a more limited sense: Showing that we occasionally do, in fact, carve out special exemptions from the ordinary presumption that people are free to lease or alienate their property, and that at least one form of the argument in favor of permitted cash-for-organ swaps is far too broad. I don't see the logical force of the quote as being in the "selling" metaphor, although the rhetorical technique is pretty clearly therein.

The larger point about the hazards of metaphors is taken, though.
1.17.2007 7:17pm
Michael Poole:
A rambling digression about "entirely personal" effects and "economic coercion" has very little bearing on the point that Professor Volokh raised. The choice of words there -- and the attempt to introduce further, also false, generalizations -- betray the argument. Is it "economic coercion" for a professional athlete to refuse to work for less than several million dollars a year? Is it "economic coercion" for an employer to offer less than a job applicant might request?

The problem with Ragerz's argument starts even earlier, though. Suppose one agrees with the (debatable) premise that, indeed, not all things should be commercialized. Agreeing with that does not automatically imply that one thinks either sexual services or bodily organs are in the realm of things that should not be commercialized.

I consider my time and attention to be entirely personal. If someone stops me on the street, does that make him guilty of "temporal coercion" or "attention coercion"? We should not outlaw unsolicited interactions with strangers in order to ensure that people retain control over their (entirely personal) time and attention. Rather, it seems that Ragerz has an unstated set of *inalienable* "entirely personal" effects but does not want either to explore or to explain the definition of that set.
1.17.2007 7:28pm
Hattio (mail):
Ragerz,
Sex is personal? Well, no. Sex is not personal, by definition at least one other person is involved, whether its sold or not. When it comes to organs, the only way another person is involved with your organs is sale, donation or surgery. The difference between selling sex and selling organs is we each have a very limited number of organs. There is virtually no limit to the amount of times someone can "sell their body" through sex.

As to the notion that prostitution involves selling someone control over your body, well, that's only sometimes true. And let's face it, this is not what motivates laws against prostitution. Otherwise it would be legal to hire prostitutes as long as they were dominatrixes (or had big scary pimps). People's objection to prostitution is they think that selling sex, or buying sex, is immoral. And that's fine, but lets call it what it is.
1.17.2007 7:33pm
Eugene Volokh (www):
Goober: The prostitution example may show that we occasionally do prohibit payment for certain things. But of course we often permit payment for certain things, including things involving the body.

The "you can't sell your body" argument is, I think, supposed to carry more weight than just illustrating that commercial transactions are occasionally forbidden: It's supposed to suggest that transactions that involve selling the body are generally forbidden. Yet it doesn't actually show this, because in fact the prostitution example doesn't involve "selling the body" in a way that's closely analogous to compensation for organs would involve selling parts of the body. In fact, the analogy between prostitution (banned) and organ sales is no closer than the analogy between commercial nonsexual massage (allowed), furniture moving (allowed), athletics (allowed), and nonsexual modeling (allowed) and organ sales.
1.17.2007 7:40pm
Kazinski:
This is an elitist argument that seeks to marginalize those of us that can't explain complex issues cogently. My love for my wife is a very complex and hard to express emotion. If I can't tell her that "I love you the way Homer loves donuts" without triggering a long response explaining why she is actually very dissimilar to a donut while I do fit the Homer Simpson analogy to a tee, then I have lost something very valuable.
1.17.2007 7:54pm
HLSbertarian (mail):

It only takes a couple of paragraphs for those who don't "get it." Most people can easily understand the metaphor between prohibitions on prostitution and prohibitions on the selling of organs.


Doesn't this just amount to saying that the metaphor is useful for talking to people who already agree with the comparison, but not others? And doesn't this play right into Prof. Volokh's point that metaphors like these (and similar arguments like "money isn't speech") aren't useful when one is trying to make an argument (presumably aimed at libertarians and other silly people who don't already "get it" as you say)?
1.17.2007 8:03pm
Q the Enchanter (mail) (www):
A metaphor is just an analogy whose comparative character has been suppressed. (Yes, I'm comparing metaphors to analogies.) The only problem with metaphors is that they aren't always easy to recognize as such.

I suspect that was Gore's failing when he made the statement you quoted, though (if I wanted to be uncharitable) I suppose he might have been trying to use metaphor to put one over on his audience. Either way, what he wasn't doing was consciously using metaphor as an analytical tool, and in that wise metaphor doesn't seem to me any more problematic than using other analytical tools (categories, concepts, descriptions, definitions, examples, models, etc.).
1.17.2007 8:19pm
ReVonna LaSchatze:
The practical matter is that China is supplying the world market for human organs from executed criminals.

A criminal or human maybe cannot sell their body, but the State can.

It's a perfect match between totalitarianism and libertarianism in the more affluent countries. Plus, if there are enough criminals awaiting execution, you can execute on order, to match the awaiting recipient.

No additional lobbying, or targeted research and analysis needed. Why wrestle with the issue of payment to free men when this market is available to exploitation, and only a handful of religious object on ethical grounds?

Also EV, would you reveal if your interest in this issue was in some way client driven, as compared to those academic subjects that you might pursue out of pure interest? I think you would disclose this, but I am curious if there is a policy.
1.17.2007 8:38pm
Malvolio:
a metaphor is not a proof. It is just an efficient means of communication for those who understand it.
You don't really need to communicate with people who already understand what you're saying.

Dr. Volokh (and I) understood the metaphor to turn on the word "selling". Apparently (to the people who find the metaphor convincing) it means "since we outlaw the selling of services we believe to be too personal, we should (or can) outlaw the selling of goods we believe to be too personal."

Of course, that statement constitutes a position, rather than an argument, but the real weakness is that it is only intuitively understandable to people who basically agree with it, and not to the people you are trying to convince.
1.17.2007 8:42pm
theobromophile (www):
Maybe I'm way off here, but Prof. Volokh's argument makes complete sense if he is criticising the use of metaphor as a debate tactic.

If there are reasons that we forbid prostitution that have nothing to do with the reasons we forbid organ sales, then the metaphor functions poorly as a rhetorical device. This is true even if there are also similar justifications for both bans (frequently, there are multiple sociological rationales for our various legal prohibitions). The imperfect overlap allows a detractor (or an impartial, but informed, reader) to argue that dissimilar reasons for one ban don't justify the other.

At this point, a person attempting to advocate for a ban on organ sales, as being consistent with our legal framework, is now arguing about the history of prostitution. As a rhetorical strategy, that leaves something to be desired.
1.17.2007 8:47pm
Dave Hardy (mail) (www):
Economic coercion to strip someone of something that is very basic to themselves and their identity.

Hmm.. so when an attorney takes on a disagreeable case, to pay the rent, he is a victim of economic coercion? I had no idea I had been so frequently victimized. Egad, in my younger days I took a city court appointment to represent a hooker ... I guess I was the victim of a victim, which must be the very definition of victimhood!
1.17.2007 8:56pm
MLH (mail):
"This is an elitist argument that seeks to marginalize those of us that can't explain complex issues cogently." In other words, I am stupid, therefore you are wrong.
1.17.2007 9:14pm
Cornellian (mail):
We actually do let people sell parts of their bodies. It is quite common in poor countries for women to sell their hair for wigs. I think you can get paid for donating blood as well.
1.17.2007 9:25pm
Joe7 (mail):
I always figured that the prostitution metaphor was for shock effect, not because it was actually comparable. I think it is quite common to pick metaphors for emotional effect, not to elucidate. If you can create the illusion that an intellectual point exists in the metaphor, such as with prostitution/selling body parts, all the better.
1.17.2007 9:49pm
David M. Nieporent (www):
In fact, the analogy between prostitution (banned) and organ sales is no closer than the analogy between commercial nonsexual massage (allowed), furniture moving (allowed), athletics (allowed), and nonsexual modeling (allowed) and organ sales.
Moreover, the analogy between prostitution (banned) and adult movies (allowed) is very strong.
1.17.2007 10:04pm
Eugene Volokh (www):
MLH: I think Kazinski was joking.
1.17.2007 10:16pm
Kovarsky (mail):
Honestly I don't understand the echo chamber here. I agree in Eugene's assessment of the prostitution remark, but the collective "amen" is bizarre.

Sure, metaphors are often misused, but I don't see them misused measureably more frequently than other means of communicative expression: flawed syllogisms, false dichotomies, assuming the answer to the question, fallacies of composition, cliches, etc. a metaphor is a flourish, and it's a less annoying flourish than gratuitous latin or polysyllabism. there's no more grating term than "arguendo," except for "godwin's law."
1.17.2007 10:19pm
Mary Katherine Day-Petrano (mail):
This is enough to make any autistic go haywire. Autistics *don't get* metaphors.
1.17.2007 10:25pm
Guest44 (mail) (www):
I agree with Prof. V. I've noticed in recent years that reasoning by analogy was one of the main ways people tried to convince me of thing (especially on the internet) and started to become one of the main ways I expressed myself.

I'm not sure how this came about. Is it possible that some part of American education placed a super-emphasis on analogical reasoning in recent years? (I'm 32.) I remember that the SAT had an analogies section, but that was purely vocabulary words, not logical reasoning.

I have really grown to hate reasoning/debate/argument by analogy in myself and others and do my best to say what I mean rather than describe something that is similar to what I mean.
1.17.2007 10:33pm
Kovarsky (mail):
I don't get it. Isn't analogical reasoning at the the cognitive root of what we do when we say "well if the court says this person can't do this in this situation, what if the logical implication of that rule in an analagous situation."

i agree that analogies often obscure poor reasoning, but no more or less than other rhetorical devices.
1.17.2007 10:37pm
Redman:
I don't think the argument is against using metaphors, per se, its against using them incorrectly or inappropriately.

After a person is educated by memorizing things, he then moves on to developing a more sophisticated type of intelligence, which is based on reasoning, comparing, contrasting, etc., which lends itself very well to the use of metaphors and analogies.

The recent poster who commented on the role analogies play in standardized testing is on the spot. AFter all, is there not still the "MAT" . . the Miller Analogies Test which at least at one time was one of the test scores very often required by grad schools?
1.17.2007 10:55pm
glangston (mail):
Maybe this follows what Simon Cowell says, "Create the hype, but don't ever believe it."
1.17.2007 11:11pm
Ragerz (mail):
HLSbertarian writes:

"Doesn't this just amount to saying that the metaphor is useful for talking to people who already agree with the comparison, but not others? And doesn't this play right into Prof. Volokh's point that metaphors like these (and similar arguments like "money isn't speech") aren't useful when one is trying to make an argument (presumably aimed at libertarians and other silly people who don't already "get it" as you say)?"

Yes. Exactly. A metaphor is useful for those who "get it" but not for others, who will need a more lengthy explanation. I wouldn't exactly word it in the way that you do, someone doesn't have to "agree with the comparison" for a metaphor to be useful. They just have to "get it," or understand the particular similarities between things that you are trying to point out.

Volokh's singles out this particular metaphor as not being a good one. But, it is no worse than any other metaphor. Metaphor's are never proofs, they are always merely efficient means of communication. Just because this particular metaphor doesn't work for Volokh.

I remember during my first semester of lawschool, trying to explain the reasons that self-defense was justified in a particular type of case. I went on and on. I was sort of embarassed when the professor mentioned that Holmes said it much better in one sentence instead of the many I was using. "Detached reflection cannot be demanded in the presence of an upturned knife."

Is this a proof? No. But does it communicate precisely why we should modify the "reasonable man" idea for a situation where, say, someone thinks they have a gun pointed at them? Yes. It does so efficiently, even though the example refers to a knife.

This is efficient communication. No more, no less.

Volokh is right to the extent he means to merely criticize anyone who would confuse metaphor with proof. But, he is wrong to single out this particular metaphor. Not everyone is going to "get" every single metaphor. That doesn't mean that the metaphor is a bad one. It just means that in this particular case, this particular metaphor does not work for him. It works fine for others.
1.17.2007 11:17pm
Steve Henderson (mail):
I think this argument has jumped the shark..

(sorry; couldn't resist)
1.17.2007 11:26pm
Ragerz (mail):
A brief word to those who don't think that "economic coercion" is a valid concept.

Move away from top-down thinking. First of all, coercion is a matter of degree. So, yes, if you have to represent someone you would really not want to represent to put food on the table, that is coercion. Though I would say minor coercion, because the effects are not very detrimental. Compare to someone who views their only option for survival as selling themselves via prostitution or pornography. Here, the effects are much more detrimental. I would say that is major coercion, especially in light of the fact that many women who are victims of the sex trade have been sexually abused as children or as adults by significant others and have major psychological issues.

So, think very context specific. It is not that hard to think of specific situations where economic power translates into coercion. That coercion, can then be though of as on a continious scale, from very minor coercion to very major coercion with many points in between.

Not all economics transactions involve economic coercion. Not all economic transactions are totally free of economic coercion. Sometimes consent is a sign that their is not coercion. Sometimes, especially when people have serious self-esteem or psychological issues, consent does not prove their is not coercion.

If you move away from simplistic top-down thinking as is often exhibited by libertarians and other ideologues, you will see that the world is a very complex and rich place, and simplistic ideas like (1) consent always means no coercion or (2) economic coercion never occurs fade away in the background.

Think more about specific situations and specific contexts. Top-down ideas, whether advocated by libertarians or marxists are seriously limited when they run into this thing called the real world, the phenonema which occurs in that real world is much too complex to be fully captured by simplistic rules or theories. When you realize this, you will move away from your simple-minded ideologies and become a pragmatist.
1.17.2007 11:29pm
ReaderY:
Professor Volokh, I assume that are using the term "services" in conjuction with the words "sexual" in a strictly metaphorical sense. The word service, from the Latin servicium, slave, with its connotation of repair, maintenance, menial acts, and subordinate position, is a particularly good one.

It seems to me that to say that selling body parts is comparable to making sex into a mechanical act is to say something meaningful -- in both cases it makes something that could be regarded as a numinous object into a merely mechanical object. You may disagree with the metaphor, but your disagreement reflects your ideology.
\
In fact, I suspect you didn't realize that "sexual services" is a metaphor -- you may have thought it a literal statement. This may be because you may perceive thinking of the body as a purely mechanical object, and hence hte use of mechanical terminology, as representing a reality rather than an analogy. If you disagreed with the idea, you would you have some distance from which to see the metaphor more clearly.
1.17.2007 11:46pm
Kovarsky (mail):
A lot of criticism of "loose metaphors" is, quite ironically, using a loose definition of "metaphor." A metaphor is not just an "analogy," which is the way most people seem to treat it. The fading picture of Dorian Grey is a "metaphor." "Prostitution is like selling organs" is an analogy or, more precisely I believe, a simile.

"Selling your body" is a perfectly fine metaphor for prostitution. It's a symbol of commodificatoin. Of course it is not literally accurate. The analogy between prostitution and selling organs is wrong, but not because the symbol of "selling your body" is a bad metaphor for either phenomenon.

Under the term's more restrictive meaning - metaphor as a symbol suggesting a resemblence - of course they appeal only to those who "get them." But that's not a malfunction; a metaphor is by its own terms only accessible to those who understand the symbolic linkage between the symbol and the referent. In other words, metaphors aren't "bad" because they are meant to evoke and explain.

Many on this thread are criticizing bad analogies, not metaphors. Analogies are generally explantory, not evocative. There's no reason an analogy, as opposed to a metaphor, should be subject to faster understanding by those who agree with the comparison than those who don't.
1.17.2007 11:55pm
HLSbertarian (mail):

Compare to someone who views their only option for survival as selling themselves via prostitution or pornography. Here, the effects are much more detrimental.


Isn't not surviving even more detrimental? Or am I forgetting the part where banning "economic coercion" also implies installing socialism?
1.18.2007 12:14am
Richard Gould-Saltman:
About three years ago, about when my father's poltics took an unexpected right turn, he began to respond, in more and more political discussions between us, with "... and analogies are treacheous" as if this were a dispositive response.
After considering this for a while, I realized, and realize again here that what he meant, (and what I THINK EV is driving at) is that incautious analogies can be treacherous. I also realized, after finding that his rejoinder was bothering me, that to the extent he meant anything beyond that, his rejoinder was essentially meaningless.

Law, and human discourse, proceed by analogy, and in many cases by metaphor; human understanding of the world and the very act of naming depend on it. We call various things which we perceive to have certain common charateristics by the same name or label; if we were to insist that things weren't really at all "like each other" in relevant ways, we would treat all objects, events, and for that matter, sense impressions, as entirely unique; meaningful discourse would be impossible.

Likewise, you can't have law, in any conventional sense, that doesn't work by analogy in general, and metaphor in particular. The categories of behavior which law regulates are categories, and law selects them based upon certain similarities, NOT because each such behavior or event is "in truth" identical in all respects. The thief who inserts his ATM card into a slot to wrongfully take funds from a bank is not "breaking and entering a building" in any but a metaphorical sense, but he apparently can be prosecuted for burglary some places anyhow.
1.18.2007 1:29am
Ragerz (mail):
HLSlibertain writes:

"Isn't not surviving even more detrimental? Or am I forgetting the part where banning "economic coercion" also implies installing socialism?"

In response to:

"Compare to someone who views their only option for survival as selling themselves via prostitution or pornography. Here, the effects are much more detrimental."

First of all, thankfully, we live in a society where survival is not typically at stake when women choose to do something other than prostitution or pornography. If you want to call that situation socialism, fine. I call it freedom. In that sense, the status quo favors me, not you.

Obviously, if you go too far, and ban even minor economic coercion, you probably lose more freedom than you gain. It is all very context specific. I am not interested in protecting lawyers from having to represent clients that they would rather not represent, even if I do recognize that their is some small amount of coercion involved whenever anyone is induced by other people to do something they would rather not. Coercion to some degree is part of life whenever one lives with other humans; the question is to what degree and in what context. The government will not always be an appropriate vehicle to prevent coercion, especially when it is minor (especially since government solutions tend to -- but not always -- involve some degree of coercion). But sometimes government solutions are exactly what is needed to increase freedom.

Is that the libertarian utopia? No safety net whatsoever and we allow people who are, for whatever reason, not served by private charity to suffer any fate, no matter how bad?? And you wonder why libertarianism isn't very appealing to most people. What is amazing to me is that libertarians often think that their conception of society gives people more freedom, when in practice, it really gives them less.

Do I think we are better of living in a society where disadvantaged women do not have to choose between prostitution or pornography on one hand and survival on the other? My answer is yes. I suppose your answer is no.

But to bring the discussion back to reality: typically, in America, the consequences of not engaging in prostitution or pornography is typically not failure to survive. Indeed, often people would be better off if they did something else (often nearly anything else) but they do not because of various psychological issues, including childhood sexual abuse or entering into an abusive relationship, low self-esteem, the idea that they deserve the treatment they are getting, etc... Combine these psychological issues with the economic situation, and you get the major economic coercion. It is not just anyone who is vulnerable.

So the answer to your question is no, prostitutes are not better off because they are allowed to be prostitutes. They would survive just fine without the exploitation, the abuse, and the rough kindness of strangers who want to use them.

This brings up a final thought. I really think the penalties for the clients of prostitutes should be raised dramatically. We have been far too tolerant of this serious crime for far too long. I think their should be no penalty at all for prostitutes themselves, and very serious penalties for their clients. A mandatory couple of years in jail for first time offenders might convince all of the "libertarian" perverts out there that exploiting women is not such a good thing. (And yes, I would be just as harsh with women or male clients of male prostitutes.)
1.18.2007 2:09am
HLSbertarian (mail):

Ragerz writes:
So the answer to your question is no, prostitutes are not better off because they are allowed to be prostitutes. They would survive just fine without the exploitation, the abuse, and the rough kindness of strangers who want to use them.


If they'd "survive just fine" without it, are they really "economically coerced" into it? They may make a poor judgment of their options (maybe due to the low self-esteem you blame), but they are not "economically coerced."

In fact, it seems one can never be simultaneously "economically coerced" into something AND have better options. In that case, I can see why you'd argue for providing better information or better alternatives, but not for ending the "coercion." No one who is truly "economically coerced" is better off with fewer options.

Also, we're getting pretty far off-topic, so we might want to leave it at that.
1.18.2007 3:02am
Frater Plotter:
The analogy with erotic movies (or "pornography", to use the common demeaning term) is possibly more apt.

It is legal for me to pay one adult to have sex with another adult, while I take pictures. It is, in fact, legal for me to pay another adult to have sex with me while a third person takes pictures. (That is, I may be the producer of the movie as well as perform in it.) The production and distribution of such movies to adults is protected under the First Amendment.

However, it is not legal for me to simply pay another adult to have sex with me, without anyone taking pictures; that would be prostitution. Nor is it legal for me to pay one adult to have sex with another; that would be pimping.

It does seem that an enterprising prostitute would be able to set him- or herself up as a director of custom erotica, using a financing deal similar to the vanity press for authors.

In the vanity press, the author finances publication, and is the publisher's real customer; the publisher provides minimal editing, prints the book (to as many copies as the author chooses), and distributes it. The publisher turns a profit regardless of whether any customers actually buy the book.

In my proposed scheme, the client finances publication of a custom erotic movie, starring him/herself and the director. The director provides the setting and photography direction, as well as his/her own talents as co-star; and pays the photographer. An actual film is thus shot and produced, with as many copies printed as the client chooses. By contract, the client holds the rights to the film.
1.18.2007 3:43am
anonymouseLiberal:
I'm shocked that none of Volokh's readers (who elsewhere so deplore what we "Liberals" teach in higher education) caught the following error which would be obvious to anyone with a educated by a "Liberal" such as myself: Volokh says metaphors are "literally falseā€”if they were true, they wouldn't be metaphors."
That claim is false. The most famous example in the literature on metaphors is "no man is an island".
1.18.2007 4:52am
ReVonna LaSchatze:
EV:

Any comment on the issue mentioned upthread? Would you reveal if your interest in organ donation and purchase is client driven?
1.18.2007 5:10am
David M. Nieporent (www):
Move away from top-down thinking. First of all, coercion is a matter of degree. So, yes, if you have to represent someone you would really not want to represent to put food on the table, that is coercion.
That doesn't make any sense at all. If you think about it this way, you'll understand why: in that scenario, who is doing the coercing?
1.18.2007 5:18am
David M. Nieporent (www):
But to bring the discussion back to reality: typically, in America, the consequences of not engaging in prostitution or pornography is typically not failure to survive. Indeed, often people would be better off if they did something else (often nearly anything else) but they do not because of various psychological issues, including childhood sexual abuse or entering into an abusive relationship, low self-esteem, the idea that they deserve the treatment they are getting, etc... Combine these psychological issues with the economic situation, and you get the major economic coercion. It is not just anyone who is vulnerable.
See, now this is paternalism. (Not "libertarian paternalism," but paternalism in its purest form.) "Anybody who would choose something I wouldn't is defective and should not be allowed to do it."
1.18.2007 5:23am
liberty (mail) (www):
"That doesn't make any sense at all. If you think about it this way, you'll understand why: in that scenario, who is doing the coercing?"

The economic system (were it true). Of course in a free market system it is probably almost never true that one must do any given thing in order to put food on the table. There is always a real choice.

And "economic coercion" is a much less coercive means than legal coercion which is backed by force - jail, gulags, etc.

Economic coercion can be brutal though, if for example, because of the lack of property rights protection certain segments of the population tend only to be offered very bad contracts: serfs, minorities who are paid less or get worse jobs, etc. The government is often responsible for this situation in that they are not equally protecting the rights of these populations, but there may be no direct legal coercion that forces these people to make the contracts that they make (as there is with legal slavery). Often the population has a choice - but the choice is between one kind of wage-slavery and another kind of rented-slavery. Proper rights protection would make it impossible to hire at those rates and would make it possible to save money and move out of the situation.
1.18.2007 9:42am
Spartacus (www):
anonymouseLiberal: the literal truth of the metaphor "no man is an island" is peculiar to its statement as a negation. The contrary (e.g., "I am an island"--see Simon &Garfunkel), while perhaps metaphorically true, cannot be literally true. The general, i.e., literal truth of a particular, i.e., metaphorical, negation is likely trivial. It would be an odd negative metaphor indeed which was metaphorically true, but literally false, which would imply that its negation (e.g., "I am an island"), although metaphorically false, was literally true.
1.18.2007 9:46am
Falafalafocus (mail):

Is that the libertarian utopia? No safety net whatsoever and we allow people who are, for whatever reason, not served by private charity to suffer any fate, no matter how bad??


To use an analogy upon a metaphor of my own, I have always believed that most "safety nets" are most easily recycled into the hangman's noose. Those in the know understand what I mean.
1.18.2007 9:48am
KevinM:
Don't they both involve putting one person's organ into the body of another?
1.18.2007 9:56am
JK:
Frater Plotter,
That's a brilliant unraveling of the inconsistencies between the laws. I wonder if it's been tried, and if not, how it would work in an area that wouldn't disapprove and pass an ordinance that would shut you down. I'm not in the business, but I'd love to suggest it to someone who was.
1.18.2007 10:09am
Kovarsky (mail):
AnonymousLiberal,

The "no man is an island" example isn't really anything to get worked up about. Although literally true, you miss its meaning if you take it literally. It is an expression whose meaning is a negative implication - "no man is an island[, but rather a connected piece of land.]" The conceptual content of the phrase's meaning remains symbolic, and you'd be missing the point to talk about its literal meaning.
1.18.2007 10:19am
HLSbertarian (mail):

It is an expression whose meaning is a negative implication - "no man is an island[, but rather a connected piece of land.]"


We don't even need brackets, we can just finish Donne's sentence: "...every man is a piece of the continent, a part of the main."
1.18.2007 10:54am
Ragerz (mail):
HLSbertarian,

Apparently, you are into binary thinking.


If they'd "survive just fine" without it, are they really "economically coerced" into it? They may make a poor judgment of their options (maybe due to the low self-esteem you blame), but they are not "economically coerced."


The point here is that economic pressure combines with other factors. Some people are more vulnerable to economic pressure when they are psychologically more vulnerable.

This isn't rocket science. Is there something about multiple factors coming together to produce an effect that you are incapable of understanding?
1.18.2007 12:41pm
Eugene Volokh (www):
Ms. LaSchatze: You have repeatedly violated the comment policy, by being pointlessly and inexcusably rude. (Those posts have also been vulgar, which does not itself violate the comment policy, but which surely does not incline me to follow your views closely.) I therefore generally do not read your comments, and am generally not inclined to respond to them.

Nonetheless, in case some other readers are interested in your query: Yes, of course, if my advocacy on behalf of organ markets stemmed from my having a client who hired me to so advocate, I would clearly disclose this.

I have never had any such client, nor do I have one now, nor do I have any expectation of having one in the future. I support (properly regulated) organ markets because I think they are right, not because anyone is paying me to do so.

Please don't expect that this comment will be part of a pattern of my responding to your questions, or to veiled allegations.
1.18.2007 12:44pm
Ragerz (mail):
David M. Nieporent writes:


See, now this is paternalism. (Not "libertarian paternalism," but paternalism in its purest form.) "Anybody who would choose something I wouldn't is defective and should not be allowed to do it."


Thanks for another example of the sort of top-down thinking I reject. Please don't make me into someone who thinks like a libertarian (that is, top-down), but merely has a different point of view.

I do not think that "anybody who would choose something I wouldn't is defective and should not be allowed to do it."

The problem with this sentence are the two words anybody and something, which render this sentence way to general.

But sometimes people do exercise incredibly poor judgment, often due to severe psychological problems. For example, if a consistently battered woman keeps "consenting" to return to a man who continues to violently beat her, that is an example of very bad judgment. In this sort of case, I think outside interference is warranted.

I don't really think you have much of an argument against that. Not unless you think the word "paternalism" is somehow a trump card. Which I wouldn't be suprised. That is nothing more than top-down thinking, which infects far too many people.

Typical libertarian argument:

Idea X is bad, not because I can make a strong consequential argument against it, but because I can label it paternalism.


This is not impressive to those of us who have not bought into your excessive generalizations and tendency to be brainwashed into thinking that whenever a very general concept can be applied (in this case paternalism), the result if obvious.

Yes. I do believe that sometimes people, especially when they have serious psychological vulnerabilities, should be protected from the harm that you "libertarians" would inflict upon them, especially when that harm is major.
1.18.2007 12:55pm
HLSbertarian (mail):


I said:
If they'd "survive just fine" without it, are they really "economically coerced" into it? They may make a poor judgment of their options (maybe due to the low self-esteem you blame), but they are not "economically coerced."


Ragerz responds:
Apparently, you are into binary thinking.
[...]
The point here is that economic pressure combines with other factors. Some people are more vulnerable to economic pressure when they are psychologically more vulnerable.


Ragerz, you're using "binary thinking" to condemn without addressing the same way you accuse libertarians of using "paternalism" to condemn without addressing.

My question was:

How can one be simultaneously "economically coerced" into something AND have better options? Or, put specifically for the example we were discussing:

Prostitutes either have "better" options, in which case they are not "economically coerced," but instead screwed by poor decision-making ability, in which case the provision of information and/or treatment of mental disorder seems like a more targeted and efficient response than banning prostitution,

OR

Prostitutes don't have better options, in which case they ARE "economically coerced" (in your usage of the term) but also cannot be made better off my eliminating the option of prostitution.

I know that you reject "binary thinking," but that doesn't mean logical EITHER-ORs are completely invalid, does it? If so, doesn't that just make you impervious to all logic?


Ragerz said:
This isn't rocket science. Is there something about multiple factors coming together to produce an effect that you are incapable of understanding?


Either I'm incapable of understanding, in which case its not worth your time to talk to me, or you should try to be civil. Wait, sorry, was that last sentence just more binary thinking?
1.18.2007 1:12pm
josh:
I have disagree with the professor here and his apparent adoption of Posner's legal reasoning. What is legal pratice if not reasoning by analogy (a better word than "metaphor" perhaps?)

In my six years in practice, I have yet to find a single appellate court case that is DIRECTLY ON POINT as people like to write in briefs. There is always some distinguishing feature. Often, our sole counter is to differentiate such actions as prostitution and selling body parts (again with the Posner!)

Yet there is controlling case law upon which we rely. We cite authority in support of our arguments and do our best to shoehorn the facts/law/holding/procedural posture of those case into ours. I have never found the perfect fit. Professor, if you're still monitoring, is this going beyond your point? Were you just referring to rhetorical flourish? Or were you taking on the notion of top-down-precedent analogies altogether?
1.18.2007 1:16pm
Spartacus (www):
josh: there is a definite difference between metaphor and analogy. Analogy implies commensurability or proportionality (a:b = c:d). Metaphor, aside from being a comparison ("like") rather than an indentification, is suggestive at best, and like you note is more descriptive or rhetorical than analytical.
1.18.2007 3:08pm
Goober (mail):
Prof. V---

I think we just read the argument differently. I'll readily agree that it's phrased sloppily, and your gloss on it is more than colorable. But if you were to respond to such an argument with something like "I take you to say we oughtn't allow the swapping of money with the product of our physical bodies. But that would show that we ought to prohibit payment for manual labor, as well!", the rejoinder would probably be that you were missing the point.

Cheers.
1.18.2007 3:16pm
Spartacus (www):
Goober:

"But if you were to respond to such an argument with something like "I take you to say we oughtn't allow the swapping of money with the product of our physical bodies. But that would show that we ought to prohibit payment for manual labor, as well!", the rejoinder would probably be that you were missing the point."

The point being? Apparently it is sometjhing like, somethings are just "off limits" for payment, like sex and organs. Well, especially in libertarian circles, it is incumbent upon the speaker to make this point, not on the listener to "get it." Considering that inclination toward the sort of mild libertarianism that would decriminlaize things like prostitution and sex (as opposed to privatising the military and courts, say) is pretty widespread, the argument falls pretty flat even if the analogy is "gotten."
1.18.2007 3:23pm
Spartacus (www):
More on reflection: since the focus of much of this discussion seems to be that it depends on your audience, note that there are four braod audience groups for the metaphor exemplar: (1) those who oppose both legal prostitution and organ sale; (2) those who support both; (3) &(4) those who supoprt one but oppose the other. It is only (3) and (4) that would need any covincing about either point, and might be swayed by their sympathy for the other on the strength of the metaphor, or lack thereof. (I think the statement was intended for those who support legalizing organ sale, but oppose legal prostitution, but it could be spun the other way, too). Those who oppose legalization of both are in the "preaching to the choir" category. Regarding those who favor both (i.e., who take the libertarian position on both), the aptness of the analogy is moot.
1.18.2007 3:29pm
ReVonna LaSchatze:
Thanks EV.
I sure hope you read my comparison between asking a restaurant for a free aspirin and asking for a free tampon.

I knew you might think that one to be a bit ... vulgar, but it was so much better a comparison that the one you originally drew. ("Some other commenters dealt with this, by suggesting that businesses will run litigation risks in what they see as the core area in which they must, but will shun even tiny risks outside that area. This isn't necessarily so -- for instance, though I hear that many businesses have tamed down their Christmas parties, many do still have them, even though any such activity involves some extra risk")


I also wrote some thoughts regarding how you and Prof. Kanner were logically misinterpreting the statement you posted from Jimmy Carter's book.

Finally, I recently asked Prof. Bernstein why if Israel was such a strong American ally, they would choose this particular moment to continue building new settlements in the West Bank.

I would bet anything you do read my comments, but choose not to respond, finding it easier to label them as "vulgar" than to acknowledge the reasoning you fail to display in many of the posts you are ... "emotionally close to."

Thanks for letting us know your passion for organ procurement is not client driven. Ethically, I suspect you are waging a hardfought fight in this country (US) to incentivize donations.

As many mentioned on the other thread (I do hope you had a chance to read them and consider other reasoning) the potential liabilities to a society to pay people for their internal organs far outweighs the benefits to the select recipients who will maintain no societal responsibility once the initial transaction has been completed.

Perhaps if you consider China as the ultimate totalitarian supply market (see comments above), you'll find this is a big enough market to meet overseas needs?

And remember: even the smartest man in the world always has something more to learn, and I'd venture a guess that you are not even the smartest man in our country. (Indeed. sorry -- was that vulgar or did it hurt your feelings? Heh, sign of a true intellectual to turn off to criticism. You must be playing in the Insta league. )
1.18.2007 3:51pm
ReVonna LaSchatze:
Here are the threads I mentioned. Be a big man and admit your interpretations have been debunked in the comments? We all can read, even if we in no way approach your superior intellectual reasoning and state professorial status (how can you libertarians work for the dreaded ... State, but that's a horse of a different color. Indeed!):

Disagree with Prof Kanner that Pres. Carter encourages terror attacks

Why don't restaurants provide free aspirin or tampons
1.18.2007 4:00pm
ReVonna LaSchatze:
Sorry, here's the link to your post asking :

Did Jimmy Carter Endorse Palestinian Terrorism

I sure hope you condescended to read some of the comments. The final score appeared to be that teh majority though both you and Prof. Konner were bringing your own emotions into play in reading the select passage from President Carter's book.

Amongst those who had actually read the book, the answer was clearer. Please do read the comments, you too might learn a thing or two that can help you understanding basic and contentious issues. You're a young man still, and everyone's thinking matures as we grow, emotionally and otherwise.
1.18.2007 4:08pm
David M. Nieporent (www):
Thanks for another example of the sort of top-down thinking I reject. Please don't make me into someone who thinks like a libertarian (that is, top-down), but merely has a different point of view.
I confess that I don't have the foggiest idea what you mean by "top-down thinking" here, but in any case, can you explain why labeling something "top-down thinking" is a reasonable argument but labeling something "paternalism" isn't?

Yes. I do believe that sometimes people, especially when they have serious psychological vulnerabilities, should be protected from the harm that you "libertarians" would inflict upon them, especially when that harm is major.
Well, I think that demonstrates a serious psychological problem on your part, and thus I am justified in restricting your liberty in many aspects, the most important of which being voting and expressing your views. Right?


Typical libertarian argument:

Idea X is bad, not because I can make a strong consequential argument against it, but because I can label it paternalism.
Right, because libertarianism isn't a consequentialist philosophy (although a consequentialist could, of course, be libertarian).

Of course, there's also an obvious consequentialist argument against banning organ sales or prostitution: it makes the people who would engage in organ sales or prostitution worse off. It also makes the people who would buy organs or sex worse off. In short, there really are no good reasons for banning these things, as illustrated by the fact that you originally cited an "affront to dignity" as your argument, which is really no different than the anti-homosexuality argument of "Yuck."
1.18.2007 4:14pm
ReVonna LaSchatze:
Of course, there's also an obvious consequentialist argument against banning organ sales or prostitution: it makes the people who would engage in organ sales or prostitution worse off.

The question is... is society worse off for allowing such "donations".

The question was raised: if a kidney is donated from a poorer person, and later that person needs follow up care that would not have arisen had he not "donated" his organs for cash... why should society undertake the care of these poorer "donors" to benefit a select few? It's not in society's interest.

Again, if you read the previous threads, you can see testimonial from the poor in other countries who were solicited for their organs. The follow up care, or lack of it, often left the "donors" worse off in terms of working at a job, providing for a family, etc.

The conseqences should not be ignored. One country to look to is Israel, where many go overseas to purchase organs since their own donor rate is low, perhaps due to lingering religious traditions that many are struggling to overcome. Many Israeli's travel to China and purchase organs from the State from criminals set to be executed there. (Jerusalem Post 11/27/06 Hundreds of Israelis travel to China each year to undergo transplant surgery, many of them helped by their insurance companies, which often subsidize the flight, said Gal-On.)

Rather than looking outward, it was suggested on the other thread that EDUCATION might be the key in countries such as Israel to sustain their transplant program. That is, instead of purchasing from executed criminals or healthy poor people, why not work within society to convince internally of the necessity for organ donation?

It seems to me otherwise you are asking American society to subsidize the benefits to the few who would benefit by paying the poor for their organs. Remember: it is the poor we are targeting here, like with prostitution or human slavery. And there are conseqences. Let's not rush the ethics analysis because "lives are at stake", because indeed... "lives areat stake", poorer ones too.
1.18.2007 4:45pm
Ragerz (mail):
HLSbertarian writes:

"Either I'm incapable of understanding, in which case its not worth your time to talk to me, or you should try to be civil."

I will admit to being a little impatient. Which is my bad. However, if we are going to talk about civility, we should not forget when you said the following: "Or am I forgetting the part where banning 'economic coercion' also implies installing socialism?"

I don't think that comment on your part was particularly civil, since it was meant as way to quickly dismiss the point I was making without addressing it substantively.

Overall, I agree that more civility, up to a certain point, is a good thing. (But on the other hand, we probably don't want to stifle debate by excessive self-censorship in the name of civility either.)

To very briefly address the substance of your point.

I do not reject either/or reasoning in every context. I was a computer science major before becoming a lawyer. I am very familiar with binary thinking, and am in fact, very good at it and have been subject to legitimate criticism for being excessively binary myself. Thus, I recognize that there are contexts in which such reasoning is in fact very useful.

Indeed, as much as I criticize it, I do not even reject top-down thinking completely. There are limited contexts in which it is quite useful as well. Especially when you can create a controlled experiment type environment.

My criticism goes to the overuse of top-down thinking. And the overuse of binary thinking in contexts where it is less applicable.

This particular social problem that we are discussing, however, is not one of those problems that is really susceptible to top-down, either/or, binary thinking. We live in a society with heterogeneous individuals with heterogeneous motivations where different forces influence different people to different degrees.

Ultimately, your "logic" here is really only a function of how you have set up the problem. You have defined it as an either/or problem. Either women who engage in prostitution are better off, but then economically coerced, but banning prostitution makes them worse off. Or they are not better off, but then not economically coerced, because the real problems are psychological. I reject the way you have set up the problem. I don't think it reflects reality with respect to how this issue actually operates in real life.

What I am saying here is that, in many cases, there are two sets of forces at play. Either of which is necessary, but not sufficient, to explain why some women "choose" prostitution. One force in play is a certain psychological vulnerability. The other force at play is economic coercion. Then, there is a third force, the interplay of psychological vulnerability and economic coercion in a way that they cannnot be cleanly or clearly seperated. However, if either force were eliminated, often the person in question would make a different choice.

You suggest that we address the psychological element only by providing information and/or treatment. If I was going to be sarcastic, I would accuse you of being a socialist. But I won't go there, out of gracious civility. The problem with this "solution" is that I think that psychological treatment has huge limitations. It would be nice if one could just "fix" people by having them talk to a shrink for half an hour, but that isn't really how these psychological issues work. They aren't easily fixable.

There is another approach that might be combined with your suggestion. That is, we could lessen economic coercion by lessening economic necessity. In fact, your very own Milton Friedman suggested this very idea when he advocated a negative income tax (which, would provide, in effect, a guaranteed minimum income while eliminating the minimum wage and welfare).

I do, in fact, believe that both of these suggestions would be helpful. Especially Friedman's idea. Nonetheless, I still don't think I would allow prostitution, because: (1) I don't think it is very important for people to have a "right" to pay someone for sex. (2) Above, I rightly limited my analysis to "many cases" of those who choose prostitution. I am not going to pretend that my top-down analysis here is comprehensive. (3) I think that any error that allows exploitation is very serious.
1.18.2007 4:50pm
josh:
Spartacus

Not trying to be snarky, but I'm not sure I agree with your metaphor/analogy differentiation (is that an oxymoron?). Webster's online defines "analogy" here: http://www.m-w.com/dictionary/analogy. It includes "resemblance in some particulars between things otherwise unlike (with a synonyms of "similarity" and "likeness").

"Metaphor," on the other hand (defined here: http://www.m-w.com/dictionary/metaphor), is defined in part as "a figure of speech in which a word or phrase literally denoting one kind of object or idea is used in place of another to suggest a likeness OR ANALOGY between them (as in drowning in money)." (emphasis added)

I think, at best, it is a question of degrees, with a metaphor "literally denoting" the similarity, where an analogy might be less assertive. Nevertheless, I too frequently read briefs that analogize cases that are DIRECTLY ON POINT, even when they are never literally the same.

I stand by my previous comment, which (perhaps unclearly) argued that the prostitution/selling body parts argument could be read as an analogy that lawyers engage in all the time. Here's my own: comparing the selling of one's body to selling body parts is LIKE comparing the facts of one case to another.

Perhaps I'm confusing Prof V's point here. It appears he is saying that the improper metaphor is the one calling prostitution "selling" of one's body, and not the comparison between prostitution and selling body parts (literally selling). That's why I asked for the clarification. My understanding (although unclear) is that he is only taking issue not with a metaphor, but with literal definition. He is taking issue with an a=b hypothetical, where he believes a is improperly defined.

My only point at the outset was that there are never perfect definitions in these a=b hypotheticals. Cases never are "directly on point." Getting the court to accept your definition of the a in the a=b hypo is the whole point of the litigation.

[Sorry for the length of this post or if it made absolutely no sense]
1.18.2007 4:52pm
Kovarsky (mail):
Josh,

I have no desire to involve myself directly in your exchange with Spartacus, but I can assure you that in common usage "metaphors" and "analogies" do not mean, much less connote, the same thing.

The big difference is that a metaphor is a SYMBOL evocative of the thing symbolized. The picture of Dorian Grey. The scarlet letter. Rosebud. Those are metaphors.

An analogy is much blander. "President Bush's legacy is to Iraq what Lyndon Johnson's is to Vietnam." See? You don't have to agree with the analogy in order to understand the comparison.
1.18.2007 5:20pm
Spartacus (www):
Kovarsy makes the point well. I do think that most of those briefs claiming that a case is directly on point (all caps or no) are reaching. This can occur only when the facts are nearly indistinguishable. Otherwise, the cases are at best analogous. Neither of these situations involves metaphor.
1.18.2007 5:42pm
Kovarsky (mail):
Just to clarify,

I'm not exercised about this; I don't walk around lamenting to myself the impoverished state of the modern metaphor.

I just found it odd that everybody get grammar school teacher bent about flawed metaphors, when the problem with the example isn't a flaw in the metaphor, it's a flaw in the analogy. "Selling your body" is a perfectly fine (albeit unimaginative) symbol for either prostitution or hawking kidneys. But something can be a good metaphor for two different phenomena without the two predicates necessarily being analogically suited for one another.
1.18.2007 5:51pm
David M. Nieporent (www):
The question was raised: if a kidney is donated from a poorer person, and later that person needs follow up care that would not have arisen had he not "donated" his organs for cash... why should society undertake the care of these poorer "donors" to benefit a select few? It's not in society's interest.
Leaving aside the question of whether that actually happens, it's actually an argument against organ donation (or, rather, live organ donation), not an argument against selling organs.

And it's also an argument against "society" paying to "undertake the care" of people, not an argument against selling organs.
1.18.2007 6:20pm
josh:
Kovarsky

I hope you dont feel compelled to avoid mine and Spartacus' discussion. It seems more to the point of the professor's post than the arguments over the merits of prostitution v. organ selling.

I agree with your definition of metaphor v. analogy. But that wasn't what the professor said. He didn't characterize the legal writing he was criticizing as "prostitution is like organ selling" or "organ sellers are prostitutes."

Perhaps what you wrote best illustrates it: " 'President Bush's legacy is to Iraq what Lyndon Johnson's is to Vietnam.' See? You don't have to agree with the analogy in order to understand the comparison." Doesn't it follow from that analogy that Iraq is President Bush's Vietnam? Just as the writing the professor complained about characterzied prostitution as a woman's body sale? My initial view was that the professor was doing exactly what you said didn't need to be done ("You don't have to agree with the analogy in order to understand the comparison.")

OK. I've made too much of this. I swear I went to a decent law school and am a decent lawyer, but if I had to take the LSAT 100 more times, I would do miserably.
1.18.2007 8:18pm
hayesms73 (mail):
You're right, Eugene, so how about this: We don't let people sell their bodies (into slavery to live on plantations), so why let them part of their bodies (for organ transplantation)?
1.18.2007 11:56pm
Ragerz (mail):
Mr. Nieporent asks:


I confess that I don't have the foggiest idea what you mean by "top-down thinking" here, but in any case, can you explain why labeling something "top-down thinking" is a reasonable argument but labeling something "paternalism" isn't?


Well, the label itself doesn't really resolve the issue. My argument does not proceed merely by labeling. As I have explained in a subsequent post to yours (previous to this post), I am not even against top-down reasoning in all contexts, but think the contexts in which such thinking is useful is extremely limited.

Mr. Nieporent writes:


Well, I think that demonstrates a serious psychological problem on your part, and thus I am justified in restricting your liberty in many aspects, the most important of which being voting and expressing your views. Right?


This is a good example of the sort of top-down reasoning I am criticizing. (It is in this type of context that such top-down reasoning fails.) I never said that voting rights and freedom of speech should be restricted. Only extreme top-down reasoning would lead one to equate restrictions on voting rights and freedom of speech, which are fundamental, to restrictions on prostitution, which is not.

Thanks for illustrating why top-down thinking is bad in many contexts, such as this one.

Mr. Nieporent writes:


In short, there really are no good reasons for banning these things, as illustrated by the fact that you originally cited an "affront to dignity" as your argument, which is really no different than the anti-homosexuality argument of "Yuck."


I reject this nihilistic idea. There is such a thing as human dignity. I am inferring that you are a libertarian. If that is the case, I am really shocked to see you adopting a nihilistic viewpoint, more typically associated with leftist postmodernists rather than libertarians.

If there is no such thing as human dignity, then on what should we protect rights? Obviously, if there is nothing special about humans, say, compared to rocks or plants or other arrangements of atoms in the universe, then it doesn't really matter what happens to them. To talk of humans having rights without the concept of dignity is like talking about rights for rocks or random arrangements of atoms. It is nonsensical.

Anyway, please defend your view that human dignity is an illegitimate idea. That would be amusing.

By the way, to clarify, since I think my previous post may have caused some reasonable confusion, I do not think consequentialism is the only factor one should consider (especially since we can't evaluate consequences anyway without reference to what we think is better versus worse). However, any reasoning whatsoever, whether consequentialist or deontological, that transforms the simplistic label "paternalism" into some sort of trump card simply is not respectable. (I am not against labels. All words are labels after all. However, I am against the idea that labels are trump cards that enable one to avoid exploring the substantive specifics of a situation.)
1.19.2007 3:04am
ReVonna LaSchatze:
Leaving aside the question of whether that actually happens, it's actually an argument against organ donation (or, rather, live organ donation), not an argument against selling organs.
1.19.2007 5:45am
ReVonna LaSchatze:
Leaving aside the question of whether that actually happens, it's actually an argument against organ donation (or, rather, live organ donation), not an argument against selling organs.

No.
Think it through. Of course you have to plan for medical complications. Though in the best countries it might be more rare with excellent follow up, but you must acknowledge the consequences just as it would be silly to prepare to invade a country but then have no plans to occupy/stabilize it.

The problem with authorizing the purchase of organs is ... then the donors will primarily be the poor in society. Not the altruistic. Not those who would have an incentive to give and see the recipient live. No one is questioning that the newer donors would be among the poor in American society, if the pay-per-organ game becomes legit.

Now who pays the medical care for the poorer in society? Society. We can quibble about whether it's a good idea for advanced societies to take care of it's children, elderly, mentally ill and most vulnerable citizens, or to deny them healthcare. (it's also an argument against "society" paying to "undertake the care" of people, not an argument against selling organs.) I'm for it and suspect most still are, for obvious reasons (I hope!).

So when a healthy poor person now "donates" a living organ for cash, and then later is unable to work and provide for his family because of complications perhaps years down the road, who pays? Society. Why? Because the poor now be a disproportionate of "donors".

Even if excellent follow up care is immediately given, there's a consequence of living with one kidney that the poor man would not have had if he had kept both kidneys himself. So the recipients receive the benefit of their bargain, but any subsequent health or employment woes of these paid "donors" will ultimately be borne by society.

Think it through. Who really wins, and who really loses in paying for human organs. It's not something that should be rushed into without thinking. There are too many societal conseqences to our country and way of living life here. If it ain't broke, don't fix it.

And if you really want to help those awaiting transplants, encourage EDUCATION EDUCATION EDUCATION. If you can convince people of the need to be organ donors rather than simply "solving the problem" (and opening a Pandora's box -- see China example above) through commodificiation of a very unique product, then the costs of donation will continue to be shared throughout society by all social classes. That's your answer right there.

Let each transplant society provide from within -- be self sustaining -- without the need to look outside its borders to essentially "scavenge" organs off the poor in other nations. This too has consequences, and I don't think it's necessarily going to be received as "Look what a great thing we're doing for you people, providing you cash you wouldn't otherwise have." Like with human prostitution, it's hard to make the argument that you're truly helping "those people", instead of merely contributing to the problems such transactions ultimately cost.

Again, the liberatarian argument of buying body parts finds its best match in totalitarian China. Just as they had spare girl children to export, they have a good number of criminals awaiting execution. The State can match recipients, execute on demand, and accept payment, thus fulfilling the buyer/seller relationship. If you have no ethical qualms and just want to save your own life, that's the perfect set up right there, eh?
1.19.2007 6:02am
David M. Nieporent (www):
Well, the label itself doesn't really resolve the issue. My argument does not proceed merely by labeling. As I have explained in a subsequent post to yours (previous to this post), I am not even against top-down reasoning in all contexts, but think the contexts in which such thinking is useful is extremely limited.
Your internal reasoning may not proceed merely by labeling -- but your actual argument on this comment thread does. You've used several labels -- "comodity," "commercialization," "dignity," "fundamental" -- but haven't presented any reasoning. You've simply treated it as if, once you cite the word, the discussion is over.

Moreover, you don't explain in which "contexts" top-down reasoning is useful and which it isn't, and why. I don't see how starting with principles can ever not be useful.

This is a good example of the sort of top-down reasoning I am criticizing. (It is in this type of context that such top-down reasoning fails.) I never said that voting rights and freedom of speech should be restricted. Only extreme top-down reasoning would lead one to equate restrictions on voting rights and freedom of speech, which are fundamental, to restrictions on prostitution, which is not.
And this is a good example of what I mean by lack of argument. That's just ipse dixit. "X is fundamental because I like it; Y isn't because I don't." (As a statement of current law, that's true, but not particularly helpful in discussing what the law should be. And certainly in our current post-Griswold, post-Roe, post-Lawrence era, we treat sex as a near-fundamental right. Not exactly a huge leap from that to prostitution.)


In short, there really are no good reasons for banning these things, as illustrated by the fact that you originally cited an "affront to dignity" as your argument, which is really no different than the anti-homosexuality argument of "Yuck."

I reject this nihilistic idea. There is such a thing as human dignity. I am inferring that you are a libertarian. If that is the case, I am really shocked to see you adopting a nihilistic viewpoint, more typically associated with leftist postmodernists rather than libertarians.

If there is no such thing as human dignity, then on what should we protect rights? Obviously, if there is nothing special about humans, say, compared to rocks or plants or other arrangements of atoms in the universe, then it doesn't really matter what happens to them. To talk of humans having rights without the concept of dignity is like talking about rights for rocks or random arrangements of atoms. It is nonsensical.

Anyway, please defend your view that human dignity is an illegitimate idea. That would be amusing.
First, let me note that that entire response represents "top-down reasoning."

Second, I didn't in any way suggest that "human dignity is an illegitimate idea." What I suggested is that it's an empty concept. I can just as easily adopt your argument and yet argue the precise opposite view: banning prostitution is an affront to dignity, because it infringes on one's right to control one's body. Homosexuality is an affront to dignity. Banning homosexuality is an affront to dignity. See? You can just plug in whatever position you want. There's nowhere to go from there because it's all conclusory. In short, saying, "We ought not to allow X because it's an affront to dignity" is no different than saying, "We ought not to allow X because it's yucky."

(There really are yucky things, so by equating the two arguments, I am not denying the existence of dignity.)


However, any reasoning whatsoever, whether consequentialist or deontological, that transforms the simplistic label "paternalism" into some sort of trump card simply is not respectable. (I am not against labels. All words are labels after all. However, I am against the idea that labels are trump cards that enable one to avoid exploring the substantive specifics of a situation.)
Indeed; that's my complaint about your "dignity" argument. But of course the "label" paternalism isn't a trump card. It's not the "label" that's the issue; it's the concept. It's the fact that it's paternalistic, not the fact that we call it paternalistic, that's the problem. Unlike "dignity," paternalism is a robustly defined concept. One can argue (as you apparently do) that it isn't bad to be paternalistic, but one can't argue that banning prostitution isn't paternalistic.

(And of course paternalism is bad because, to use your terminology, it's an affront to human dignity.)
1.19.2007 6:09am
Spartacus (www):
Kovarsky makes a good point, which I think reinfornces what EV was saying in a different manner. Metaphors do not make arguments. They are descriptive, artistic even if you will. Analogy is the heart of many (particularly inductive) arguments: if we know the relationship x:y, then if a is analogous to x and b is analogous to y, we have a:b as x:y. Not "getting" the metaphor in this case reallyt means not agreeing with the analogy, which is the proper way to characterize rejection of this argument. Whether you "get" the metaphor or not is immaterial as to whether you think the analogy holds (that is, if it is "on point").
1.19.2007 10:00am
Ragerz (mail):
Mr. Nieporent,

Your latest argument is entirely intellectually vacuous. You apparently, are nothing more than a nihilist.

You write:


Second, I didn't in any way suggest that "human dignity is an illegitimate idea." What I suggested is that it's an empty concept.


It isn't illegitimate, it just is meaningless? That is an amusing distinction.

Following your reasoning, if someone were to murder you, there would be nothing wrong with that. I mean, to say that forcibly taking your life somehow violates your dignity, well, dignity is an empty concept...

All this demonstrates is that you are fundamentally confused. Obviously, that which should be included within the concept of human dignity is debatable at the margins. That something is debatable at the margins does not render it empty. The concept of human dignity has a solid core.

You think that paying someone for money for sex is fundamental? Are you not able to form meaningful relationships with others or something??

Anyway, you are apparently someone entirely lacking in sense or morality. This is illustrated by your assertion that human dignity is empty.

Good job, at destroying your own credibility.
1.19.2007 2:42pm