Eugene Volokh says the thing that is

Unlike most of Red Blogistan, the original Volokh Conspirator knows bad logic and bad manners when he sees them, and isn’t afraid of Rush Limbaugh.

The performance of the Red commentariat in the Limbaugh-Fluke affair has been even more disgraceful than the performance of Republican candidates and office-holders, with lots of bloggers joining in the anti-Fluke sliming party and many of them – including Erick Erickson – embracing the idea that somehow paying for expensive contraception implies having a lot of sex, and that this in turn implies having many sexual partners, or the idea that a requirement that privately-paid health insurance cover contraception is somehow the same as a taxpayer subsidy, and that the Obama rule requires taxpayers to pay for other people’s sexual activity.

A few, unwilling to defend Limbaugh, instead attack the Democrats for criticizing him. But that’s not really much better.

Now contrast my friend Eugene Volokh. He and I don’t agree on much politically, but he knows bad logic and bad manners when he sees them, and isn’t afraid of Rush Limbaugh.

I would think that parents would much rather hear on the radio that their 21-year-old daughters are using birth control than that their grown sons are calling women “sluts” on national radio.

Good for him!

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

40 thoughts on “Eugene Volokh says the thing that is”

  1. Eugene also learned today that many of his regular commenters love their Limbaugher cheese very, very raw–and did not take too kindly to Eugene demanding a consistent sense of decency.

  2. OMFG! Those comments – on one of the most intelligently-written blogs on the Right – have to be read to be believed. I’m glad we decided to enforce a “Play nice” policy on comments.

    1. I was particularly struck by the comments of “Houston Lawyer”, who first tried to say Limbaugh was only joking. That sent me to the audio tape because I had only read the transcript. When I heard the audio, I could hear very clearly that Limbaugh was not joking at all–and was just being vile. Then, “Houston Lawyer” proceeded to defend the content…And the comments from others get worse from there. Eugene Volokh is one of the great minds and a very good person overall. But I think he learned what Charles Johnson learned over at his blog, Little Green Footballs when he asked for a little decency from his readers…

      1. re: only joking. Isn’t that Limbaugh’s whole schtick? He does this passive-aggressive thing where he says outrageous things, often in a semi-joking manner, so he can always retreat into “I was only a joking/What, can’t take a joke?”. It’s the old authoritarian bully dynamic where the leader takes pot shots at the weakling, while his sycophants (dittoheads) bob their heads in obeyance. If the psychodynamics of right-wing radio weren’t so creepy it would be fascinating.

      2. Oh, this was my favorite, from “yguy”: Her “arguments” merit no response, other than maybe a brisk backhand across the face – which is, figuratively speaking, pretty much what Rush gave her.

        For daring to express an opinion, she deserves to be slapped. Trust contemplate what kind of person would write that in public, and what kind of community he must inhabit to expect not to be chastised for it. And in the intersection of those two things, you find the modern Republican Party.

    2. I got down to the comments and had the same reaction. It smelled of contempt for civil discourse. Thanks for keeping it classier over here.

      I noticed with amusement that they quickly deployed the latest right-wing meme against Volokh’s argument, pretending to confuse criticism of a method of making a point with missing the point itself: Eugene: Sorry you missed Limbaugh’s point when he uses what he calls “illustrating the absurd by being absurd”.

      1. Hey, at least the reactionary nuts embrace critical theory. We may not have won Viet Nam yet and are apparently still drowning in hippies, but it seems that Derida is now trans-partisan.

  3. “…somehow paying for expensive contraception implies having a lot of sex…”

    Could someone please explain the detriment of having a lot of sex?

    1. this is very similar to one of ms. marcotte’s points over at pandagon during the past few week’s war on women. by trying to keep the issue as solely one of health for women with hormonal imbalances, a tendency to cancer, etc. we are making a much weaker point than a robust defense of womens’ sexuality and their right to have consensual sex without fear of pregnancy would allow for.

      the main detriment of having lots of sex, from the male republican point of view, would seem to be that it is not being had with them.

      1. I agree with you, but I think a distinction needs to be made with regards to Rush’s comments. While I agree that it is a mistake in general to speak too much about this as an issue for those with hormonal imbalances, that is what Sandra Fluke was discussing. One of the many places where Rush’s comments are appalling and inaccurate is that, so far as I have seen, Ms. Fluke wasn’t discussing her own sex life at all.

        One of the lessons from that, of course, is that a part of the reason it’s a mistake to focus too heavily on this as a non-sexual health issue is because that part of it is going to be ignored anyway.

    2. “Could someone please explain the detriment of having a lot of sex?”

      I think that much of his audience is people who really, really, *really* resent others having and enjoying sex.

  4. What puzzles me (not really) is the number of commenters who want to raise hell because “I shouldn’t have to pay more for insurance because women want to have more sex,” or something like that.

    Guess what. By the same logic I shouldn’t have to pay more for insurance because a lot of people eat way too many cheeseburgers with fries, and get diabetes, or need to have bypass operations, or even just take statins. I shouldn’t have to pay more because some people smoke, and get lung cancer, some people drive recklessly and have accidents, etc.

    In other words, sexual behavior is not the only life-style decision that affects one’s medical costs, and can drive up health care bills and hence insurance premiums. Yet that’s the one that gets the attention. Hmm.

    1. And I’ve actually heard this argument from conservatives. If you think about it, the whole concept of insurance (loss sharing) is somewhat anathema to modern conservatism’s cult of personal responsibility.

      1. Conservatives understand the purpose of insurance to be loss averaging among people similarly situated. You have a 10% per year risk of an event that costs $1000? Insurance transforms it into a predictable expense of $100 per year, plus administrative costs and profit. That guy over there has a 20% risk of the same event? He pays $200 per year.

        But if you know for a fact you’re going to be spending $200 a year for something, it’s not a proper subject for insurance, and if it’s costing you less than $200 a year to ‘insure’ against this predictable expense, it’s just an income transfer program, robbing the people who aren’t incurring that expense for your benefit.

        IF the government thinks that $200 per year expense should not be born by the person incurring it, the government should tax the public generally, and fund the benefit out of the general budget as an explicit expenditure. This can prove unpopular, of course, with people who aren’t incurring that $200 per year expense.

        So the government tries to force private companies to cover the expense, and add the cost to their prices, as a way of hiding the expense of an income transfer program. Really, it’s no different than if the government, wanting to have a welfare program for the poor, but wanting it to be off budget, passed a law demanding that grocery stores sell food below cost to the poor, and pass the cost on to everybody else in higher prices.

        You want income transfers, do it openly.

        Oh, and Rush? Yes, very tacky, sometimes he is. I think it’s deliberate, he’s part shock jock.

        1. “Loss sharing,” as Eli calls it, is the same as “loss averaging,” as you call it.

          You have a 10% per year risk of an event that costs $1000? Insurance transforms it into a predictable expense of $100 per year, plus administrative costs and profit. That guy over there has a 20% risk of the same event? He pays $200 per year.

          Funny, that’s not how most health insurance in this country works. Employer-based plans typically do not charge differential rates for covering different employees.

          Health insurance is way more complex than you seem to understand, and thinking about it on a term basis is a serious mistakes.

          1. Yes, Brett does not understand that it’s cheaper for my employer’s insurance plan to pay for the fixed monthly cost for Lisinopril for me (minus my $10 copay) than to pay for the catastrophic costs of a stroke or coronary down the line.

          2. Brett understands that he’s writing a blog comment, not a master’s thesis. No matter how much nuance I include, you’ll be able to find some detail I omitted, so why not make my basic point, and leave it at that?

        2. Another way to look at health insurance is to not only spread risk across a group but to also spread it over time. In a ninety year lifespan a woman may only need birth control for thirty years. That is one third of her life.

          As to individual risk, a woman who is using birth control is protecting the men she has sex with as well.

          I can understand that from the standpoint of health insurance as a backstop against unexpected or catastrophic loss it makes no sense to pile routine prescriptions on but then you wouldn’t be interested in paying for a presciption drug plan or even look for a reduced premium by taking a high deductable.

          In the end the problem comes back to the piss poor efficacy of health insurance being provided by employers. It’s too expensive, inefficient, wastes time and enegy in debates like this while delivering spotty coverage and finally after people pay for coverage over years, when they get sick and can’t work they lose the coverage they have payed for just when they need it. This last point is not a hypothetical possibility but rather a commonplace disater that increasing numbers of people live with, whos’ only fault is the crime of getting sick.

          But I digress. The question is: Do you want to pay for a prescription drug plan or not. If you do then it should pay for prescription drugs and birth control pills are exactly that.

        3. There is no possible metric to use in assessing risk / cost accurately. And if there was, there would be folks who would never be able to pay for their likely costs.

          And yes, it is a wealth transfer from the healthy to the sick.

          1. Another thought – a well done system is a net win for society at large.
            Better health is a benefit that is shared.

    2. Plus, they’re dopes. The expensive kinds of birth control (pills, implants, IUDs) don’t cost proportional to the amount of sex the woman has. You take one pill each day, whether you’re a prostitute having sex twenty times a day or a nun with heavy periods. Or, like Ms. Fluke’s friend, a lesbian with polycystic ovarian disease. Apparently Rush Limbaugh doesn’t know how birth control pills work.

      And even if you are using birth control pills, you can’t take a month off if you aren’t having sex that month. You have to keep taking the pills every day, or they never give you protection.

      1. brett, i would say it’s because you seldom “let it go at that” and because you so often stand athwart the path of reason and say “not on my watch!”

        after a couple of year’s of reading this site and your comments i’m tempted to no longer engage with you on this or anything else. once in a very great while you make a point worth considering but all too often you just represent an annoyance heading the conversation down blind alleys of the absurd. it was that tendency that caused me to regard you as a comments section comic but you have assured me that isn’t the case.

        at any rate, your understanding of the concept of insurance is so bizarre in this instance. you’ve really never heard of risk pools? you’ve really never heard of the concept of spreading the insurable risks over larger groups to both reduce the average premiums and allow the insurers to have a more steady income? you regard insurance as part of one’s job or a part of one’s tuition as a gift rather than a part of either one’s compensation or what one is paying for with their tuition? it’s not that you aren’t writing a master’s thesis, it’s that you aren’t writing anything intelligible as rational discourse. you’re simulating rational discourse but you seem to know so little about what you’re discussing that the effect is like conducting a turing test with an a.i. program set to simulate consertvative/libertarian thought.

        1. One thing Brett doesn’t seem to grasp is that once you are insuring against catastrophic costs it makes sense to factor in preventative measures. It’s not only in the interest of the insured, it’s in the interests of the insurer.

          With different kinds of insurance, this interest leads to different approaches. For most types, it manifests through discounts on premiums for taking various actions. For health insurance, this doesn’t make much sense since there is such a wide variety of preventative measures to take and that the insurer can usually obtain them at a much lower price than an individual can. Therefore, it makes much more sense to include payment for them through the policy rather than through premium discounts. Given the way that the health care market is structured in the US, if you aren’t a veteran or a senior citizen it probably isn’t even possible to use the latter method.

          What this produces is health insurances policies that look like they include lots of things that aren’t, properly speaking, things that involve insurance. Understanding of secondary effects, though, makes it clear that they are covering things that are important to insurance as risk avoidance. All of it ties together.

          Now, that’s not the only reason cover these sorts of things and there is lots of stuff that make the insurance model of health coverage an inefficient farce. I actually agree with him that it would be better to just have the government pay for it all directly than to have this silly kludge. Where I disagree with him is that I think having people with pre-existing conditions dying on the streets would be a bad thing, and so the ugly compromise is better than just doing away the regulations altogether.

          1. Nice job articulating secondary effects and common interests for preventative measures.

            I actually agree with him that it would be better to just have the government pay for it all directly than to have this silly kludge.

            Ooh, I see what you did there! Well-played!

          2. What “well played”? I agree with that, too. I’d oppose either policy, but if the government wants a welfare program, far better that it actually run a welfare program, openly, on budget, paid for by taxes, than that it just force private companies to implement one, and pass on the costs to customers.

            Much more transparent.

            Of course, that’s the point here, avoiding transparency, in order to implement programs for which there’d be no political support if the costs were visible.

          3. Of course, that’s the point here, avoiding transparency, in order to implement programs for which there’d be no political support if the costs were visible.

            Always with the paranoia. No transparency here. That’s why we’ve been talking about the details for days, because they’re all so invisible. The cost issue has been debated to death and you have done nothing but repeat the same tired right-libertarian talking points and consistently avoid addressing any rebuttal to them offered, just like you did here with J’s comment addressing the cost issue.

            Do go on with your paranoid rants about welfare and deadbeats, just keep in mind that the only reason you’re able to publish them where they have a snowball’s chance of being read by anyone is because you’re freeloading on someone else’s blog.

  5. Bit by bit it seems to be getting harder to be a conservative by today’s standards and a decent human being. Frum learned it fairly recently and now has given himself permission to let his decent side out to play, at the cost of being rejected by the nihilistic sociopaths who used to be a part of his fan club. There really is a lot of room between being a “movement conservative” with totalitarian leanings and Herbert Marcuse.

  6. 1. Yes, Rush was being very rude in his way as a provocateur. An interest in copulation with out either reproduction or disease is neither prostitution nor sluttishness. For it to be prostitution, she would have to receive the money directly instead of merely merely receiving the money indirectly to protect against any negative effects of the copulation.
    2. Employer-provided health-care coverage is subsidized by the tax system in a few ways. Shortly after this controversy started (the bishops’ thing, not the Rush thing that has grown out of it) Matthew Yglesias and Kevin Drum both wrote posts basically saying that it isn’t really like the government is telling private parties how to spend their money (as opposed to the individual mandate that is also part of the new health-care law) because for health-care the employer is really like a pass-through. Tax-exemption of health-insurance spending etc.
    3. Even absent government subsidization, the idea of insurance itself is a form of subsidy paid by whoever is paying as a whole to whoever is receiving the service. There are costs to providing contraception and even to the extent that the taxpayers do not pay those costs through the tax system, they still pay when those costs are passed along to them as consumers of the services provided by the employer. Additionally, the employers themselves are taxpayers (in most cases) and if you consider this not to be a taxpayer-subsidy, then the employers are the ones who most directly pay for coverage for these services. If a Jesuit university does not want to pay for contraceptive coverage as part of a health-care plan, but the government thinks that it does, then it seems like the answer is for the government to bear the costs as directly as possible instead of adding it to the costs of the university. I know that laws add many affirmative obligations on private parties other than taxation, but it seems very difficult to put something that almost purely involves how an employer uses its money on its employees, in a way that is not even closely related to the employment iself like wages or labor standards, as not being highly intrustive if it is not a government subsidy.
    4. The entire need for contraception as a health-service is dependent on people’s desire for copulation without procreation or veneral disease. Absent this desire, the entire need disappears. Of course, it is completely insane to imagine that this desire will go away, so it makes a lot of sense for the government to require that these health-care plans include contraceptive coverage.
    5. Maybe parents would be also embarrassed at grown men like Volokh and Kleiman boldly coming to the defense of some attention-seeking woman law-student. “My hero!”

    1. Your point 4 betrays a complete ignorance of the myriad therapeutic effects of the hormones in oral contraceptives, which are commonly prescribed for reasons other than “people’s desire for copulation without procreation or veneral disease”, while also betraying your apparent bizarre fixation with other people’s desire for copulation, which has been manifested in nearly every post I’ve seen you write.

      Your point 5 is atrocious. What is it about Ms Fluke that has you opining that it would be somehow embarrassing to defend her against vile and unfounded accusations of “slut” and “prostitute”? How is she less deserving than, say, your mother if it were her being slandered with those epithets?

    2. 1.) Outrage is transformed into money, and adulation, in the world of the Limbaughs (and Beck, O’Reilly, Coulter, Wiener, ad nauseum). It’s a tradition they all follow.

      2.) Yglesias and Drum made a good point. I don’t see a refutation here.

      3.) The costs (or a portion of them) for health insurance are being passed from the employer to the employee, and the employee-paid percentage of those costs continue to rise. I don’t know the average cost, per person / per year, for contraception; but it would be interesting to compare that number against costs for other coverage in employer-provided health insurance and see where it ranks.

      4.) I have no idea what you are trying to say.

      5.) A backhanded defense of Limbaugh, while implying Volokh and Kleiman were wrong, and suggesting that Herr Limbaugh was correct in calling Ms. Fluke a slut, a prostitute, and a women who wants to be paid to have sex.

      I agree with Atrios’ argument: This entire Brouhaha is about “unapproved sexytime” by women. The American Taliban don’t like it, and the Limbaughs of America want to make as much money as possible by trumpeting an outrage they claim is universal.

  7. Brett: “What “well played”? I agree with that, too. I’d oppose either policy, but if the government wants a welfare program, far better that it actually run a welfare program, openly, on budget, paid for by taxes, than that it just force private companies to implement one, and pass on the costs to customers.”

    Brett, we tried that, back in 2010. The right made sure that we wouldn’t have a public option.

  8. Also, Brett, nobody has criticized you for not posting master’s thesis work. You’ve been criticized for extremely bad logic (favoring your political beliefs), apparent ignorance of reality (favoring your political beliefs), and not backing up claims(favoring your political beliefs).

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