Bainbridge on foie gras and dog-fighting

Professor Stephen Bainbridge springboards off of our August 24 post to take a cut in the Examiner at a principled distinction between banning dogfighting and foie gras.

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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