You might have noticed that prostitution was on my list of things to talk about while blogging on truthonthemarket.  Had I been blogging a decade ago, both prostitution *and* organ sales would have been on my list.

You see, I have maintained for over a decade that the Supreme Court’s plurality opinion in Planned Parenthood v. Casey supports both (a) the right to have sex for money and (b) the right to “sell” (using the term loosely) an organ.  (Actually, I have long maintained that significant parts of the Planned Parenthood opinion are as nonsensical as a page from a Dr. Seuss book, but if we take Planned Parenthood v. Casey to mean what it says, it seems to me that the Supreme Court should support the “liberty interestâ€? in a woman’s body that allows for sex for money and the selling of an organ, albeit regulated at the state level.)Â

Since at least 1995, I have intended to write a law review article on this topic (to wit, how the Supreme Court inadvertently created this quagmire for themselves with the liberty language loosely lobbed about in Planned Parenthood v. Casey).  I have obviously not yet gotten to the article, and, over the years, I downgraded my goal from an article taking on both organ commodification and prostitution to an article taking on prostitution.

Imagine my delight, then, to see the WSJ piece by Richard Epstein on page A15, dated May 15^th, 2006, titled “Kidney Beancounters.â€?  Epstein makes the economic (though not legal) argument for supporting “imagination as to how a sensible organ market could be organized.â€?  His position is that at least testing the market for organs is a sensible response to the current transplant donor drought.  Today’s Wall Street Journal (Letters to the Editor page) had several responsive letters to the editor, both in support of Epstein’s piece and against.  This is an interesting economic and social policy topic, made all the more interesting when juxtaposed with Planned Parenthood v. Casey, Lawrence v. Texas, and Washington v. Glucksberg.  Though I doubt this topic will build steam . . . .

 (Let me be 100% clear – I do not know enough about organ transplant issues to take a stand on the issue of whether an organ market is a good thing.  Additionally, this post should not be taken to mean that I support prostitution.  (For purposes of this post, I am neutral, though I have very strong religious and moral views on the topic outside the academic arena.)  I do know, however, that, while “liberty takes no refuge in a jurisprudence of doubt,� weak opinions that are more akin to thinly-veiled policy decisions proffered by the high Court create more problems than they fix.)

Words and their meanings can be tricky as an absolute matter; moreso when used as tools in the law.  I have vague recollections of the interesting cases from first year contracts class where the contracting parties had gotten themselves all tied up by attributing differing meanings to the same words.  Good times, good times.  And the issue of defining words (how to, when to, how much to) has twice come up on this blog over the past few days, such that I thought a post directly related to defining words was warranted:

Yesterday, Bill raised the issue of using the term “stockholdersâ€? instead of “shareholdersâ€? and vice versa.  His post met some interesting comments (read here).  A couple of days before that, I had posted about defining “good faithâ€? and “not in good faith.â€?  See “Nowicki on Good Faithâ€? here and, in its first iteration, here.  In Bill’s post, he was ruminating about how careful he needed to be (or did not need to be) when using the words “stockholderâ€? and “shareholderâ€? in his academic writing.  In my post, I was ranting about the bastardization of the phrase “not in good faith.â€?Â

In both threads, the issue was indirectly raised – how technical or meticulous should we be with our word usage?  (Note that I am shrewdly not defining “we� in order to leave the potential scope of the conversation broad.)  I am not sure that I have a “position� on the issue as a general matter, but, off the top of my head, I favor (a) using words that the reader can understand without whipping out a dictionary, (b) erring on the side of clarity, and (c) resorting to the dictionary with Justice Scalia-esque frequency when interpreting a word whose meaning is not contextually clear.

Four additional definition-related thoughts:

1.  Peter Tiersma penned an article in the September 2005 Journal of Legal Education titled “The New Black’sâ€? (discussing 2004 Black’s Law Dictionary revisions).  I recommend this article – it was both interesting and edifying, and Tiersma gets bonus points for using the phrase “meet and properâ€? before he closed page two of his article.

2.  Not to be a one-trick pony, but the director liability world would be a lot more user-friendly if we would all agree on one general, affirmative definition of “good faith.â€?  Backing into the definition by way of looking for the absence of “bad faithâ€? does not advance the discussion, in my view.  Bad faith leads us to use phrases such as “intentionally subversive conductâ€? – I am not sure I can differentiate intentionally subversive conduct from conduct that is subversive but not intentionally subversive.

3.  Did you know that the tobacco industry used the word “zephyrâ€? in internal memos as the code word for “cancerâ€? in order to obscure the serious health impacts of smoking?  See Lisa Bero, Implications of the Tobacco Industry Documents For Public Health and Policy, Annual Review of Public Health Vol. 24: 267-288 (Jan. 2003).  My grandfather died of lung cancer – I wonder if he would have been astute enough to define “zephyr” the same way the tobacco companies did, had he been lucky enough to see the internal memos before he took up his deadly habit.

4.  Bonus points if you can work the word “elide� into a sentence tomorrow!  (See here and here)