PrawfsBlawg

Random pop culture for a Sunday afternoon

This is, to my mind, one of the best commercials of all time. Yet I saw it on TV exactly once, then it was gone. Anyone know why?

Choosing Civility

Professor Farid's post reminded me that it is Choose Civility Week in Howard County, where my family lived for several years before our recent move to Buffalo.  This week is part of the Choose Civility initiative, which hopes to "enhance respect, empathy, consideration and tolerance in Howard County" by "infus[ing] civil behavior into our business, community and personal lives."  At the core, this initiative focuses on such basic principles of civility as paying attention, being respectful, and being considerate.  In short, these are things we should have learned in kindergarten, if not earlier.  

It all sounds fine and good, but questions about the impact of the movement remain.  There are no hard data about the impact of the program, and the initiative seems slogan-heavy but light on practical explanations as to how, exactly, this "infusion" will work.  If it were that easy, we could just "infuse" a strong work ethic or a "just say no" attitude toward drug use.  That's not to say that such an initiative is a waste of time an money, but, in the absence of any empirical information suggesting a tangible benefit, one has to wonder.

More than anything, it strikes me as a P.R. move.  The website constantly reminds the reader that Howard County was already "highly civil environment;" adopting this initiative is apparently a sign that the citizens of Howard County are just really, really committed to civility.  

In the interest of full disclosure, my skepticism may be based, in part, on personal experiences that are probably irrelevant.  Put simply, a disproportionate number of the cars driven by the worst, most inconsiderate drivers I ran across during my last couple of years in Howard County sported the "Choose Civility" magnet:

Mind you, I would be feeling and behaving perfectly civil BEFORE the car in front of me darted across three lanes without a signal or sat through a green light as the driver chatted someone up on their cell phone.  It was so persistent and uncanny that I actually started to wonder if the people with these magnets had been forced to put them on their vehicles by the local traffic court, perhaps as an effort to flag bad drivers and discourage those around them from giving into road rage (in retrospect, this was probably a foolish idea; I doubt that the mocking command to "choose civility" would do anything but incite those prone to road rage further).  My research revealed no such concerted effort; just the Choose Civility website. 

But I digress...I'd love to hear others' thoughts about civility initiatives such as this one.

R-E-S-P-E-C-T?

Many thanks to Dan and the gang for having me back.  I'm looking forward to a fun month.

Like many, I have been appalled by the lack of respect demonstrated toward President Obama by some (including these two).  It may be, as some allege, that a degree of the incivility is due to racism, but I am not entering that discussion; the impropriety is plain simply from the fact that there is some feeling that it is socially or culturally acceptable for those with a pulpit, so to speak, to be openly and unproductively hostile toward the President (and his family).  Hurling utterly disrespectful vitriol at leaders isn’t exactly new (Clinton springs to my mind, and I’m sure others have memories that are significantly more expansive), yet it seems worse to me now than it was even with Clinton—more directed, more ubiquitous, more tolerated.

The occurrence is not only in the States, of course.  In fact, this blawg post was spurred by (my astonishment at) a recent tidbit about a press conference with Gordon Brown, in which he was asked if he takes medication for depression.  Whether a citizenry should be on notice about its leader’s health to that extent is perhaps debatable, but this question was based solely upon an Internet ‘find’—one blogger’s ruminations, labeled as news.

How did we get here?  Why is this acceptable (to the point where such actions are defended)?  My initial thought was the pervasiveness of the media, both online and broadcasted.  Various media outlets (including private bloggers) compete for news and information, for readership.  With 24 hours to fill, broadcast media give air time to angry citizens who might otherwise have been ignored or seen fleetingly at best (see: the Birthers); that sheen of legitimacy, however slight, is picked up by others in the media and by some politicians, then used, if not as a template then as a justification, for lashing out.  But there seems to be something more in the acceptance of the behavior, particularly in the personal nature of some of the attacks and inquiries.  With respect to our leaders, the discretion, the propriety, has been lost—or at least severely diminished.  This could be because our society is moving in the same direction generally—that what was once protected by notions of discretion, privacy and ‘personal space’ is now perfectly acceptable fodder for public viewing (or feasting).   Numerous articles have lamented our collective loss of decorum to social networking.   Perhaps our willingness to reveal all, to expect all, via Tweeting and status-posting and sharing publically photographs best saved for an album only in one’s mind, has turned us into a society that refuses to recognize boundaries, even in once-hallowed halls.  And while this may seem generational, remember-- it’s not the young ones who are obsessed with Twitter.        

So:  what constitutes permissible behavior by the media and/or by politicians toward a nation's leader(s)?  Is it appropriate to levy personal attacks, to abandon good manners, to make inquiries into deeply personal matters?  And if the answer to these is ‘yes,’ has it always been this way, or has our recent shift in ways of communicating/interacting made it so?

Chinatown Part III: The Two Victims

Look for the burgeoning international celebrity crime story of Roman Polanski’s arrest in Switzerland to turn into another global culture war about American mores with one spin emphasizing US Puritanism and punitiveness versus European civility and tolerance, and the other spin emphasizing US concern for victims and European decadence and aristocratic disdain for popular fears.  Enjoy what is certain  to be months of coverage with attention to a few ironies from the golden penal state.  Specifically:

(1)  Polanski is himself the chief victim of the most celebrated/transfixing crime in California (arguably US history); the 1969 murders of his wife, actress Sharon Tate, and his nearly born son (she was within weeks of delivery), and four others (three of them close personal friends), by cohorts of psycho-killer-guru Charles Manson.  I argued in a post earlier this summer that the Manson killings and subsequent trial, which transfixed the state and nation for weeks during that pivotal year, helped to reset California’s politics to the kind of “leave no prisoner behind” liberal/conservative consensus we have on tough punishment that has dominated the state ever since.  (I’m continuing to gather evidence that is so far generally supportive of that claim and hope to have a short paper up later this fall).  As a victim of a sexually tinged murder of his wife and child, Polanski is a “super-citizen” of the Republic of California (see, chapter 3 of Governing through Crime), viewed as an eternally recurring victim, suffering ever renewed damage by the memories of his savage loss as each Manson family prisoner comes up for a parole hearing, and accorded a growing set of specific rights in our constitution.  However, as a fugitive from a child sex abuse crime he is at least presumptively guilty of (having pled guilty and fled) he finds himself on the other side of that coin, accorded no element of human empathy by the state or its leaders, protected only by the increasingly shrinking set of federal constitutional rights accorded defendants and prisoners.  Polanski’s best defense is that the murder of Sharon Tate made him do it.  California voters recently enshrined victim rights in the Constitution in a voter initiative that compared the victim experience of parole hearings for murderers to being tortured.

(2)  If Polanski’s international supporters are surprised at California’s endurance on this issue they should not be.  California’s willingness to prosecute crimes to the fullest possible extent of the law was soberly marked last week with the death in prison of Susan Atkins, the “Manson girl” who stabbed Polanski’s wife and son to death whose death from brain cancer came after almost forty years in prison (read her LA Times obit).  Atkins, the longest serving woman in California history (but we’ve got a lot of history to make) was recently denied parole for the umpteenth time, being found a potential risk to Californians despite meeting the board in a hospital gurney (her leg was amputated as part of cancer treatment) with a prognosis of only months to live. 

(3)  Although I haven’t checked the sentencing range for the count of unlawful sex with a minor in 1977, it is almost certainly far lower than it would be today.  California’s new Determinate Sentence Law had just come into effect and the new fixed ranges (based on statistical norms for the indeterminate sentencing practice) were incredibly short by contemporary standards.  In the decade following Polanski’s flight, public concern about child sex abuse would mushroom into far ranging prosecutions of day care workers and others for lurid and implausible (and unlike Polanski’s reported assault, largely fabricated) crimes in which scores of people were sentenced to decades in prison (some of them now released and exonerated).

(4)  America’s penal state makes big city prosecutors potential political stars as crime fighting heroes, but also exposes them to the full fury of the vengeful public when their choices do not line up with the "maxi-max" principle (the maximum punishment for the maximum number of  people).  LA prosecutor Steve Cooley is notoriously “left” of the law enforcement consensus on issues like three strikes, drug treatment not incarceration, and the death penalty.  Precisely because of that he probably felt vulnerable to any accusation that he was being soft on a Hollywood criminal fugitive charged with sexually assaulting a minor, whose supporters continued to make law enforcement, and prosecutors specifically, the bad guys.

MacArthur Grants: Rewards or Incentives for Creative Life on the Margins?

Following up on Adam's earlier post and the comments therein about Elyn Saks' receipt today of a MacArthur genius grant, I was wondering about a larger issue: whether foundations really should be showering $$ on folks like the professors at Harvard (and USC Law), where these folks are already making a decent living for the work they do. The point of the MacArthurs, as I understand it, is to give people the time and money and freedom to do the cool work they've been engaged in recently.  I think that's awesome--and would certainly love a little Mac money thrown my way. But are the folks already making north of 100K and enjoying job security at universities the people who should benefit from this windfall largesse? 

To be sure, I don't have the time or inclination to deny the "genius" status of Professor Saks or the other prof recipients. But I think if I were a steward for the foundation and trying to optimize the social output from genius-type talents, and still committed to doing this without a real application process, I'd rather see the scarce funds allocated to those creative geniuses who are, in a word, freelancing, and thus wondering who's going to cover their health care benefits for the next five years. Am I wrong to think some of these choices are sub-optimal on those grounds alone??  I recognize that if the point of the awards were simply to recognize great contributions over the course of one's career, like a Nobel (?), then that determination should be made without regard to the job security of the recipient. But the Macs' genius grants are purposefully different, don't you think?

My Daughter Does Walk to School

My twelve-year-old daughter walked to school this morning, she has been since a year ago when she began at Martin Luther King Middle School about a mile from our home in north Berkeley.  As Jan Hoffman reported in yesterday’s  Sunday Styles section of the NYT, this kind of routine traverse to and from school, a fixture of my childhood (ironically I was living in Hyde Park on the South Side of Chicago where in the late 1960s street crime was hardly a fantasy), has become an endangered species in early 21st century America, a victim of a handful of childhood predators among us, and a vast and largely state supported fear of victimization.  While according to Hoffman fewer than 115 child abductions by strangers occurs in a year on average, many Americans will see that many “Amber Alert” highway signs blinking a message about a child kidnapping in progress. 

Those parents that seek to allow their children what one author and parent, Lenore Skenazi has appropriately called “Free Range" childhood, (the alternative the “gated childhood” we no impose on kids of all classes in the name of their security.  Despite the fact that my daughter walks through an upper-middle class neighborhood where there are hardly ever drive  by shootings or outdoor drug selling, the fact that a stranger might pull up and force her into a car (more or less what happened to Jaycee Dugard in South Lake Tahoe 19 years ago) haunts me and probably every parent.  My wife and I have decided to embrace “free range childhood” for our kids because we have concluded that on balance the physical and mental gains from enjoying autonomy and that quintessential form of freedom known as walking around one’s neighborhood outweigh that terrifying if vanishingly small risk of a kidnapping.

The focus on gated childhood is important as we reflect on the costs of over-securitizing American society.  While my book Governing through Crime devotes only a chapter to the family, and only a small part of that to the issue of overprotecting one’s children, it is in many respects where the war on crime really begins and ends.  Protecting ones’ children, rather than conscious or unconscious racism, is the primary consideration that leads parents to choose non-walkable and non-diverse gated communities to live in, sterile segregated schools, and harsh penal policies that promise to (regardless of how marginally) improve that protection.  Until we stop imprisoning our children behind walls of our own fear, there is little chance we will stop imprisoning so many of our fellow citizens.  That is one political battle that will have to be fought one household at a time.

Happy New Year

Rosh Hashanah, the celebration of the Jewish New Year, begins at sunset next Friday. Far away, but I could not wait to post this. Because it falls on Shabbos this year, we do not blow the Shofar on the first day. We do, however, take the day to "recall" the blowing of the Shofar.

This should help us recall:

Go Figure: How Pandora works

When I was in high school, one of the New York radio stations had a program gimmick called "Go Figure," in which they would play three songs and callers had to guess the link among the three (which sometimes was pretty esoteric).

I was reminded of this while using the Pandora app this morning. Pandora works by taking a starting-point artist, then playing other songs by other artists that the listener would enjoy (according to the program), presumably because of some similarities among the artists and songs. So please explain the following:

The starting artist was ABBA (forgive us--we watched "Mamma Mia" last night). It played "Take a Chance," followed by the version of "Dancing Queen" from the Original Broadway "Mamma Mia" Soundtrack. So far, makes sense. We then got the following in order: 1) Cyndi Lauper ("Girls Just Wanna Have Fun"); 2) Pat Benatar ("We Belong"); 3) Carly Simon ("You're So Vain"); 4) The Beatles ("Here Comes the Sun"); 5) Fleetwood Mac ("Little Lies").

Now I will say that I genuinely like three of those five artists (not saying which ones). But how or why would an algorithm group those songs/artists for one listener?

Arthur and the Law

As Dan adjusts to life with Cubby, the great question is how we balance scholarship with parenthood. One possible answer: You never know when legal scholarship will appear in unexpected places. Case in point:

Today on Arthur (my daughter's post-nap show of choice), an expensive cake plate was broken in the living room and a video/audio recording seemed to show that the plate had broken while Arthur and his friend were throwing a baseball around on their way to play outside. And everyone's immediate conclusion upon watching the tape was that Arthur was responsible for breaking the plate. But breaking the recording down, along with outside investigation, showed that conclusion was wrong.

In other words, the episode illustrated the central point in my recent article on video evidence. As I said, you never know.

Baseball, punishment, and Pete Rose

Reports are coming out that MLB Commissioner Bud Selig is considering reinstating Pete Rose to baseball, during the twentieth anniversary of Rose's permanent ban from Major League Baseball for gambling on games involving the team he was managing. Reinstatement virtually ensures Rose's induction into the Hall of Fame, perhaps as early as next year. The only thing that had been keeping Rose out was Hall of Fame Rule 3E, which bars from election and induction any person on MLB's Permanently Ineligible List.

Two sort-of law-related queries after the jump.

First, I would like to hear what crim-law and punishment scholars think about this as a matter of punishment theory and practice. Rose accepted permanent ineligibility from the game as part of a settlement, likely to avoid a formal finding that he had bet on games in which his own team was involved (the evidence against him is pretty strong). He later admitted to that conduct which, under Major League Rule 21(d) carries an automatic punishment of permanent ineligibility ("shall be declared permanently ineligible"). But now it appears he is going to get back into the game (and probably the Hall) within his lifetime, although the 20 years he lost as a manager, executive, ambassador, etc., certainly are nothing to sneeze at. Is this the equivalent of a commuted sentence--he served his time, he has reformed himself, let him get on with his life? Or is this more like a pardon--a subsequent statement that Rose did nothing wrong? Are the goals and theories of punishment and of MLB furthered by this move, which ultimately gives Rose everything he wanted, if a few years late? And what do we do with the arguments (which always have seemed counter-intuitive to me) that if Rose had admitted to gambling in 1989 or any time within the past two decades, he already would (and should) have been reinstated.

Second, what about the Black Sox, the eight members of the Chicago White Sox, who were permanently banned for their various roles in taking money from gamblers to throw the 1919 World Series. Reinstating Rose would establish precedent that a permanent ban for gambling-related activity is not, in fact, a permanent ban. If Rose can be reinstated after twenty years, is there any argument against reinstating the Black Sox players after eighty?

After all, some of them were suspended for arguably less-serious infractions than Rose. Shoeless Joe Jackson (the one Black Sox player whose reinstatement likely carries with it a debate about the Hall of Fame) took money but did nothing to lose games; Buck Weaver took no money and was punished only for knowing about the fix and not informing team and league officials. Reprehensible conduct to be sure; but Selig seems to be in a forgiving mood. Moreover, without excusing the Black Sox, context matters. Baseball during the first twenty years of the last century was a few steps above professional wrestling--gambling, fixed games, and general cheating were pervasive, constantly discussed, and mostly ignored. Talk of fixed World Series games went all the way back to the first Series in 1903 and there was talk of fixes in both the 1917 and 1918 Series, as well as late-season shenanigans from 1917-19. The hiring of Kenesaw Mountain Landis as commissioner reflected a conscious move by the Major Leagues to shed that image as entertainment and become a true, on-the-level competition. By the time Rose came along, on the other hand, the rules and the history were well-established and could not have been clearer--gambling, especially gambling on games involving your team, was the ultimate baseball sin; it even was posted on the wall of every Major League Clubhouse. That knowledge arguably makes Rose's conduct more unforgivable.

Can there be any rational distinction drawn between the Sox players and Rose that would justify reinstating the latter and not some or all of the former? And is Selig aware of the box he is opening?

How Not to Be a Lawyer - Theatrical Version

I'm immeasurably proud of all my children, including James, who comes home next week from his summer as a teaching assistant in the EPGY program at Stanford, and Matthew who starts med school at Michigan next week (where we'll be attending his White Coat Ceremony), but today we focus on my daughter, Arielle (Columbia, MFA, Dramaturgy, expected '10, pictured, in the middle between director Jeremiah Matthew Davis and playwright Daniella Shoshan), who combines an actor's creative instincts, leadership, and an amazing ability to organize things as the producer of Tell It to Me Slowly, one of the plays featured in the New York International Fringe Festival, "the largest multi-arts festival in North America, with more than 200 companies from all over the world performing for 16 days in more than 20 venues."

One of Arielle's claims to fame is the way in which she anticipated the Big Law meltdown of 2008-09, having worked for a year following her graduation from Sarah Lawrence College in 2006 as a litigation paralegal at Weil, Gotshal & Manges in New York, thinking perhaps about going to law school.  Somehow all the thrills and excitement of paralegal life just didn't do it for her.  I wonder why.

Tell It to Me Slowly runs for five performances between August 15 and 29 at the Robert Moss Theater in New York.  I'll see you there on the 29th.

What's in a (Jewish) name?

Ron Rosenbaum at Slate pens an open letter to Jon Stewart, urging him to use his given surname of Leibowitz professionally (Stewart's given name is Jonathan Stuart Leibowitz). Rosenbaum's argument is that Stewart's decision early in his career to change his name reflects the remnants of the now-antiquated, 20th-century belief that Jewish performers needed less-identifiably Jewish names to gain acceptance from the (subtly anti-Semitic) mainstream American society. See, e.g, Bob Dylan, ne Robert Zimmerman, or Kirk Douglas, ne Issur Danielovitch Demsky. Friends and family who are from my parents' generation (late '60s-mid'70s) have told me about being kids and playing the parlor game "Who's a Jew" for a sense of ethnic and religious pride--and the trick was figuring it out from very not-Jewish names.

But, Rosenbaum argues, 21st century America readily accepts "openly Jewish" (I don't know any other way to put that) celebrities--that Gentleman's Agreement anti-Semitism is mostly a thing of the past. And Stewart is pretty explicit about his Yiddishe identity and has parlayed that hamishness into replacing Walter Cronkite as the most trusted newsman in America.* So, Rosenbaum argues, if there is anyone who can get away with flaunting a Jewish name to the U.S. as a whole, it's Jon Leibowitz.

I am not sure what I think of this one. I am not sure the underlying issue that Rosenbaum is trying to engage--performers and celebrities overcoming their ethnic identities and whether that remains necessary in today's society--really is in play here. I never saw Stewart's name change as an attempt to hide his Jewishness. I always assumed he did it just because he had an unwieldy name for show business--the two syllables and seven letters of Stewart roll off the tongue (and take up less billboard and marquee space) than the nine letters and three syllables of Leibowitz. If he had a shorter but still-identifiably Jewish name (Rosenbaum points to Jerry Seinfeld), perhaps Stewart would not have changed it (although no one other than he knows). I can sympathize, actually. I am not sure I would have tried to make it as an actor/singer/comedian/broadcaster with a last name like Wasserman--not because I believed it was too Jewish, but because it is a mouthful. Plus, he settled on Stewart, which still strikes me as a very Jewish name; although we could wonder why, if he were not trying to pass, he did not go with say, Jon Leib.

Rosenbaum points to his own experience and the pride his father took when he became a writer and continued to use the family name. But writers, it seems to me, are different than entertainers and many Jewish writers, even of the last century, used their given, obviously Jewish names--Isaac Bashevis Singer, Philip Roth, Studs Terkel but see Saul Bellow (ne Solomon Bello), although that's still pretty close.

It is an interesting point. And Rosenbaum is working on a biography of Bob Dylan and wonders whether he could have become Dylan had he tried to make it as Zimmerman. Still, I doubt people would see the host as more Jewish or more prideful of his Jewish identity if it were The Daily Show with Jon Leibowitz.

• I am a huge fan of Stewart's and have been since he first took over The Daily Show in 1999. But his being the most trusted newsman just tells us the low esteem in which the public holds the news media.

Jo Reggelt from Budapest

That's good morning.  This is not a language for amateurs.

A word on the danger of tight international connections.  Northwest's first A330 in Detroit destined for Amsterdam on Friday night decided it was broken, so the company flew another one in from Minneapolis, which was fine, except that my Amsterdam connection to Budapest was one hour and twenty five minutes, and we left one hour and twenty minutes late.  So I sat for seven hours in Amsterdam.  One note to travelers.  If you are making a connection in Schiphol Airport and have to go through EU immigration (i.e., from the international side, which is Concourses E and higher, to the domestic side (A-D), and you have a tight connection, there is a "short connection" line at the left, which you may not see until you've waited in the other lines for a while.

I arrived at the hotel in central Pest at about 11:30 p.m., and even on Saturday night most restaurants are closed by 11 p.m.  I walked out onto Vaci Utca (street), which one guide described as a quaint and lively pedestrian zone, which seemed to be pretty deserted, and was approached by a very loud and obnoxious pimp and a different prostitute in the first three minutes.  English for "get lost" seemed to work okay.  I came back to the room (after finding the 24 hour grocery store) to find that another guide book, had I read it, would have warned me that this is exactly what I should have expected.

Notes on teaching American regulatory law (securities) to international lawyers coming up this week.

Fun Civ Pro fact of the day

So there is a reason to watch Jeopardy other than when Paul is on: You might learn things, even about civil procedure. Yesterday, I learned that Tennessee Williams (a St. Louis native) used to work at International Shoe--according to the question (answer?), it was while working there that Williams met a man named Stanley Kowalski.

This would be a great factoid to mention in class--if I had any hope that a decent number of students would know who Williams was.

Are You a Lawyer?

A couple years back in this very space, guest prawfsblawgger Liz Glazer invoked Bob Slydell’s immortal line from Office Space (“Just what would you say … you do here?”) to frame a discussion of the challenges of explaining to non-lawprofs … well, just what it is we do here. In this post, I want to pose a narrower question that crops up whenever I try (often with little success) to explain the content of my job to those outside the academy.

Often when I am in the process of attempting to explain the character of lawprof-ing, my interlocutor will reply, “Oh, you’re a lawyer” (or ask, “So you’re a lawyer?” or some such). I’m often unclear what to say in response to this. My guess is that most lawprofs would simply answer “yes”, and I can see the intuitive appeal of this reaction. After all, we all have law degrees and we train future lawyers, certainly we must be lawyers ourselves, right? But for some reason, I don’t find the answer to this question to be quite so straightforward. I understand the inquiry to be one about the content of my work (this may be wrong for reasons I detail below), and nothing about what I do looks anything like the applied practice (as opposed to the academic study) of law.

All this has prompted me to think more about what it means to be a lawyer. I propose a typology of possible approaches to this issue, and my sense of where I (though not necessarily others) fit, below the fold.

Here are a few different ways we might understand what it means to be a lawyer. First: simple formalism. Pick your bright line: if you’ve earned a J.D., or passed a bar, or are a member of a bar, then you’re a lawyer—it’s a status that you earn at some point, and that stays with you throughout your life, regardless of what you end up doing professionally. If you don’t meet the criterion, you’re not a lawyer, period. The appeal of this approach is that it’s nice and clear, like all formalism. The downside is that it has over- and under-inclusivity issues. If the definition is “passing the bar at some point in your life”, then the Duncan Kennedys of the world don’t count as lawyers (though one might say this is right). Moreover, if you pass the bar at 27, but leave law behind altogether for decades, does it still make sense to say you’re a lawyer at 60?

Second: practical functionalism. This is just the opposite of the formalist approach above. The idea is that if you practice law, you’re a lawyer. As I suggested above, this is how I usually understand what it means to be a lawyer. There are lots of people with J.D.s and even bar memberships whose daily work looks nothing like the practice of law, and who wouldn’t know how to advise or represent a client if their life depended on it. It’s hard for me to see how such folks (which may include a lot of law profs, possibly myself) can meaningfully be called lawyers, even if they have a diploma from an accredited law school sitting in a box somewhere. It’s worth noting that this approach doesn’t have an overinclusivity problem, because the ABA’s unauthorized practice guidelines preclude those without some kind of credentials from practicing law.

Third, and finally: lawyerly ethos. This approach suggests that being a lawyer is a set of behavioral norms rather than a formal or functional question. That is, if you act in a certain way—and in particular, if you frequently deploy what we think of as distinctively legalist reasoning—you’re a lawyer. The skill set we call “thinking like a lawyer” and that most of us attempt to inculcate in our students—critically examining assumptions, reliance on careful interpretation of language, and a willingness to engage in reasoned argument—is often what laypeople seem (in my experience, at least) to most strongly associate with being a lawyer. This approach, of course, has serious under- and over-inclusivity issues as well. I’m sure we can all think of lots of folks who have lawyer-esque approaches to reasoning even though they’ve never been formally trained in law school.

So given this typology, are lawprofs lawyers? The reason I find this inquiry interesting is not that I think there’s a right or wrong way to define “lawyer”, or a correct or incorrect way to categorize lawprofs pursuant to the above typology, but rather that it has forced me to think about what it means to be a lawyer. There are, of course, plausible arguments in both directions. I typically adopt a narrower (functionalist) view of what it means to be a lawyer, and as a result I typically say I’m not one. Most lawprofs I meet tend to prefer broader definitions that capture lawprofs in the definition of “lawyer” (although some lawprofs still practice, which makes them lawyers by any measure). So one’s answer to this question may say more about one’s own preferred professional self-conception than it does about what the right understanding of the term “lawyer” is. Interested to hear what others think.

Quick thought on Sarah Palin

This post is explicitly partisan-political, so I know it may be violating our motto.

Last August, I wrote a couple of posts arguing that The West Wing had broadly predicted the rough political, personal, and ideological outlines of both halves of the presidential tickets for both major parties, including Republican VP candidate (social conservative small-state governor included to appeal to an unenthusiastic conservative base and balance a distrusted moderate at the top of the ticket). But I also suggested that "had the show's writers written Sarah Palin as the GOP nominee for vice president they would have been ripped apart by commentators as liberals stacking the narrative deck and making Republicans look unrealistically unserious."

That statement looked pretty good as the election played out in the following two months. After this weekend's events, that last statement is looking even more true.

In praise of "The Wire"

Sorry for the long blogging silence. I had promised myself that I would complete (fully sourced) the penultimate draft of my current article, so I have spent just about every working minute of the past couple weeks filling in footnotes. That fun now complete, I can return to some blogging. Later this week, I will have some thoughts on some recent, including the end-of-term flood. For now, let me wade back in with some pop culture.

My wife and I watched the full five-season run of "The Wire" in the past two+ months. And I have to say it is one of my two or three favorite shows ever and probably the best in terms of quality of any show I have watched regularly. I continue to wonder how our experience (and enjoyment) of the show was affected by the manner in which we watched it. In two+ months, we experienced a program that was designed to be experienced over five 3-4-month periods, spaced a year apart. It is the difference between reading a book and reading a magazine serial. What would cognitive and psychological theory say about the different experience and how that affects our enjoyment of the show?

The Wire had three of the greatest, most unique and memorable characters in television history: Omar Little, a gay stick-up man that some have likened to Robin Hood; Stringer Bell, the consigliere of the drug lord in the first couple seasons, who read Adam Smith, took economics classes at the community college, and tried to apply regular business and economic principles to the drug trade; and Bubbles, a homeless heroin addict who may be the one decent character whose life is arguably better when the show ends than when it began.

It even did a pretty good job of portraying the courtroom in two lengthy scenes, both of which I believe are accurate enough to present in Evidence class. The show last five seasons and each worked into the narrative a focus on a unique Baltimore institution: 1) street gangs and city police; 2) the port; 3) city government; 4) city public schools; and 5) the Baltimore Sun. I am somewhat sorry they could not have figured out a sixth season, focusing on the courts (which were shown throughout, but in a tangential way); my guess is this group could have developed a true-to-life presentation of lawyers and the system.

Finally, the show featured unquestionably the best theme song in television history.

Pure Social Norms and the Seinfeldian In-town Courtesy Call

The funny thing about the cliché “it’s funny because it’s true” is that it’s true. Take, for example, the TV show Seinfeld. I was never a huge fan, but what seemed to give the show such broad appeal was that it identified so many quirks of human behavior that persist as strong social norms despite their apparent irrationality (thus setting up the next generation of humor in Curb Your Enthusiasm, where Larry David created oodles of awkward-tainment by openly violating those norms).

Even the silliest of the Seinfeldian social norms, though, have some kind of plausible explanation or intuitive appeal behind them, even if they don’t make perfect sense. Consider the mania about holding elevators in an office building. In the famous scene where George lets an elevator door close in the face of an oncoming person, Seinfeld gets the courtesy exactly right: there’s a strong expectation that people in the elevator hold the door, and it is perceived as particularly rude about letting the door close as you watch them desperately run toward you. But there’s something sensible about this: your minimal effort of holding the door for a few seconds might save that onrushing person a lot more time that they’d otherwise spend waiting for the elevator to return, so the courtesy seems to work as a simple welfarist matter (i.e., it's Kaldor-Hicks if not Pareto optimal).

But there’s one rule of social behavior lampooned in Seinfeld that I could never make any sense of, because it seems untethered to--and possibly inconsistent with--any practical explanations or instincts about courtesy.  I say more about what this norm is and whether it may signal a category of "pure" social norms below the fold.

The norm that has me nonplussed is the rule that out-of-town visitors should contact their friends and relatives who live in the town they’re visiting to say hello—even if they don’t have the time or interest to actually meet them in person (you may recall that Jerry violated this rule with respect to (I think) his Uncle Leo, to Leo’s great offense—he was all like “if you’re in town, you gotta call me”, yada yada yada). This may seem like a fictional invention, but it persists at least amid some subset of the population. I know this because I've been on the receiving end of it a few times, including just the other day. A friend sent an email saying “Hey, I’m in LA. How are things?” I wrote back suggesting that we meet up (which I sort of assumed was the point of the original email), and the response came: “No time to meet up. Just saying hello.” I was baffled and kind of offended in equal part.

The reason this baffles me is that, unlike the elevator-door norm, I can’t come up with a plausible, practical explanation for the obligatory in-town courtesy call. You’re no more or less capable of calling or emailing out-of-town friends when you’re in their neck of the woods (although maybe it's a holdover from the pre-cellphone days when local calls were significantly cheaper?). And as my story above suggests, the in-town courtesy call norm may actually come off as discourteous; it seems to emphasize to someone that their friend or relative is not interested in seeing them during their time in the same city ("Hi, I'm in town, and I just wanted to call and let you know that I won't be making time for you."  Ouch!).

So I write this for a pair of reasons. The first is to canvas the blogosphere to see if there is some intuition or practical explanation behind the Seinfeldian in-town courtesy call that has thus far escaped me. And if not, the second is to query whether this conduct falls into a category I’ve come to think of as the “pure” social norm. The pure social norm is an expectation about social behavior that persists despite its neither having any instinctive moral force, nor having a plausible practical explanation. It's a norm for norm's sake.   Does such a category exist? Is this kind of norm distinguishable from other ones? Should we act in a way that intentionally frustrates pure social norms in order to extirpate their wasteful presence from our lives? These are the things Seinfeld makes me think about. What the hell is wrong with me?

Rethinking music videos

Marc has made music the order of the day, so I decided to follow up on that. My post has nothing to do with law, unless there is some question about transformative use, or philosophy (I don't think).

Anyway, there is a series of "Literal Videos" making the rounds on YouTube. Over the video, someone sings (to the tune of the original song) precisely what is happening in the video (which, of course, rarely has anything to do with the actual song lyrics). Some of them are pretty funny, especially when taking on a video that is particularly over-the-top or bizarre.

For both over-the-top and bizarre, nothing beats my two favorites:

and

Late-Night Lawyers

It was an honor and a delight to join PrawfsBlawg as a guest in May. Where did the time go? In other (much more famous) news of transitions, we all know that Jay Leno signed off on the Tonight Show on Friday, and Conan O’Brien takes the helm today, which led me to think about the relatively small number of lawyers who have joined either show as guests over the years. The most famous lawyer and law professor to sit on either couch is President Obama; after that, the list is hard to remember, and a quick check around the web for such a compilation did not result in fruitful hits. As Jay and Conan transition to their new shows, which bits from their old shows would you like for them to keep? Which lawyers would make interesting guests?

 

Again, thanks so much to Dan and everyone at PrawfsBlawg for this great opportunity. I plan to return in the fall, space permitting. Have a wonderful summer!

 

Can a Run Really Count When the Runner Never Crosses Home?

So I'm taking a break from grading con law exams to watch my favorite team (the Mets) beat up on my least favorite local team (the Washington Don't-Call-Them-"Natinals"), and there was an odd play in tonight's game:

With no one out and Gary Sheffield on first base in the bottom of the sixth inning, Daniel Murphy hit a ball that appeared to glance off the facade of the second deck before landing in fair territory. On the field, the umpires ruled that it was in play (and so must not have hit the facade), and Sheffield was thrown out at home trying to score. After going to the video, the umpires overturned the call, and ruled it a two-run homer.  Murphy, who stopped at third, finished trotting around the bases, and the Mets took a 5-3 lead.

Here's my question, though:  What about Sheffield, who was thrown out at home before the replay?  Doesn't he have to go back and touch home at some point? If not, is it possible that I witnessed the first time (or, at least, one of the first times) in major league baseball history that a run "scored" without ever crossing home? 

I raise this because baseball's rules are notoriously formalistic when it comes to crossing home -- think back to Robin Ventura's "Grand Slam Single" in the 1999 NLCS.  So even if Murphy's shot is a homer, doesn't Sheffield have to cross home before his run can count?

Or is this just proof that technology will overcome even the most fundamental of all rule-based systems? Where are our jurisprudence scholars when we need them??

Padel's Resignation from Oxford

The AP via NYT reports:

Oxford University's first female Professor of Poetry resigned Monday after acknowledging she had helped publicize charges that her rival for the post had sexually harassed a former student. Ruth Padel, 

the great-great-granddaughter of Charles Darwin, made history at Oxford when she became the first woman to be elected to the position of Professor of Poetry since the job was created in 1708....But Padel's election was marred by Nobel literature laureate Derek Walcott's decision to withdraw as a candidate from the election after anonymous letters attacking him were sent to Oxford academics. British newspapers reported that the letters made reference to an allegation of sexual harassment made against the St. Lucia-born poet by a former student in the 1980s. The papers said the letters included references from the book ''The Lecherous Professor: Sexual Harassment on Campus,'' by Billie Wright Dziech and Linda Weiner, which carries allegations against Walcott made by a Harvard freshman in 1981. At the time of his resignation, Walcott said he had never commented on the claims and would not do so now. But he called the anonymous letter campaign an attempt at character assassination. Padel came under increasing pressure after The Sunday Times quoted e-mails it said she had sent to two unidentified journalists drawing their attention to the book. In a statement announcing her resignation, Padel acknowledged sending the e-mails. But she said she did not engage in a smear campaign, explaining that she had only passed on information already in the public domain. ''I acted in complete good faith, and would have been happy to lose to Derek, but I can see that people might interpret my actions otherwise,'' she said in the statement.  Oxford University, which has been embarrassed by the controversy, said it respected Padel's decision and that ''a period of reflection may now be in order.'' A new election is expected sometime before the current Professor of Poetry, Christopher Ricks, steps down from his post at the end of the summer.

What do you all think about this? Is it wrong to draw attention to material in the public sphere--or to do so anonymously when one is the other candidate for the position? Was Padel engaged in a form of anonymous cyber-bullying? Was Walcott's resignation an appropriate form of just deserts? What if Padel had been approached by the journalists and/or offered the information on background and acted in response to student concern? Is it really enough to warrant the claim that she won the professorship as part of a "scurrilous ... campaign"? Last, consider this provocative, but probably unreasonable, claim by one commentor for the Independent:

With Padel too, the shockwaves set off by her emails suggests that ambitious women are not allowed to play hard. Men can and do use any weapons they have when battling against competitors, but not so the gentler sex. How many male professors across the land can honestly say they have always played fair to reach where they are?

I confess, I have no idea how this issue would play out in the US. Some of it reminds me of The Human Stain and Disgrace--two super novels by Roth and Coetzee, respectively.  Thoughts?

Has Hillary Seen Godfather II?

This classic is among 25 films highlighted in an article listing the best films to address foreign policy issues. I like to show film clips in my classes, so this list may provide a few ideas. A colleague of mine likes to show the bank robbery note scene in Woody Allen’s Take the Money and Run, which is hilarious. Filmed in mock documentary style, Allen, as Virgil Starkwell, unsuccessfully attempts to rob a bank with a misspelled note that reads, “Please put $50,000 in this bag and apt natural, because I am pointing a gub at you.” Instead of fearing the robber, the tellers and bank managers are too busy trying to decipher Virgil’s handwriting to heed its contents. Does anyone else like to use clips in class?

Pardon My Language

How often do you find yourself using foul language?  Are the occurrences rare, or is your conversation rather peppered with variations on four-letter words?  How many times have you slipped up in class (whether teacher or student)?  When you hear such language, are you offended by it consistently, at times depending on context, or rarely if at all?

The Supreme Court last week upheld the FCC’s implementation of a rule permitting it to levy fines in the event of a one-time profane utterance.  The FCC rule stems from what it once called a “fleeting and isolated” use of the F-word by Bono at the 2003 Golden Globes; the rule signaled the FCC's reversal of course on that position, on the heels of similar utterances by Cher and Nicole Ritchie. 

The decision is, to me, questionable on a couple of fronts.  The Court tabled the First Amendment issues, but in doing so left quite a bit of room for further contests.  I wonder whether the non-sexual use of a term should be punished despite a standard that prohibits just such “context[ual]” use.  I am also curious whether the FCC’s approved position is one that is detached from conversational reality (as pointed out here and here, the Court refrained from mentioning either of the two words at issue in the case once in the decision--perhaps an indication of such detachment).  To that end, I return to the questions at the outset of this post (similar questions could be asked about standards concerning nudity; the Court today directed the Third Circuit to reconsider its decision against the levying of a hefty fine upon CBS for the Jackson/Timberlake “wardrobe malfunction”).  Have standards changed with respect to what is thought of as indecent language (or is this guy still right)?  If so, have they changed to a degree that would warrant the FCC being more accepting of “fleeting and isolated” uses of words (particularly words used in a non-sexual manner) rather than less?  And be honest—how many times have you slipped up in class?

Live Chat on Investigating (and/or Prosecuting) Bush Administration Officials

Hi all -- Just wanted to flag that I'll be doing a live chat today at 1:30 p.m. (EDT) over at WashingtonPost.com on whether (and to what extent) Congress and/or the Obama Administration should investigate and potentially prosecute Bush Administration officials. My own views are a bit complicated, but it should be a fun discussion!

Fav Quote

I was prepping professional responsibility for this week and returned to this gem of a quote that to me so accurately captures much of the practice of law:

"About half the practice of a decent lawyer consists of telling would-be clients that they are damn fools and should stop."

Source after the break.

Elihu Root, 1845-1937

Lawyer, U.S. Attorney Southern District of New York, Sectary of War, Secretary of State, U.S. Senator, and Nobel Peace Prize recipient

Justice Jackson on Umpires and Judges

This post was written by John Q. Barrett of St. John's and the Robert H. Jackson Center; it was sent to the Jackson List (Link: http://new.stjohns.edu/academics/graduate/law/faculty/Profiles/Barrett/JacksonList.stj) and was forwarded by my FIU colleague, Tom Baker. Jackson's comments are in line with arguments I have made against Chief Justice Roberts's views of the judge-umpire connection.

On Thursday, December 13, 1951, Justice Robert H. Jackson spoke at the New York County Lawyers’ Association’s annual dinner, held at the Waldorf=Astoria Hotel in Manhattan. The Association and its 1,000 guests that evening honored senior federal Circuit Judges (and cousins) Learned Hand (age 79, and a judge since 1909) and Augustus Noble Hand (age 82 and a judge since 1914). To close the program, Justice Jackson delivered a “benediction” speech that included a now-famous line: “if I were to write a prescription for becoming the perfect district judge, it would be always to quote Learned and always to follow Gus.”

Justice Jackson also paid tribute to the Judges Hand that evening by drawing the analogy between an excellent judge and a baseball umpire. As Jackson put it,

the test of an independent judiciary is a simple one—the one you would apply in choosing an umpire for a baseball game. What do you ask of him? You do not ask that he shall never make a mistake or always agree with you, or always support the home team. You want an umpire who calls them as he sees them. And that is what the profession has admired in the Hands.

In recent years, the umpire-like work of judges has been described as much more mechanical than volitional. In 2005, then Circuit Judge John G. Roberts, Jr., nominated to serve as Chief Justice of the United States, testified to the Senate Judiciary Committee that

[j]udges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.

Chief Justice Roberts was, of course, confirmed. In the process, his description of judging as mere rule-applying umpiring became a topic of much attention and discussion. Among lawyers, law professors and judges, the consensus view seems to be that the Chief Justice knows better, and that confirmation candidate advocacy should be recognized for what it is.

Interestingly, a captivating new book, New York Times reporter Bruce Weber’s As They See ‘Em: A Fan’s Travels in the Land of Umpires (Scribner) (click here), takes direct issue with the robotic, rule-enforcer view of umpires’ work. According to Mr. Weber,

[t]hough fans and broadcasters may treat the [home] plate umpire as if he were a mere ballot counter, punching the ticket of each pitch as it crosses the plate and acknowledging its ostensibly obvious credentials, in truth he’s much more of an arbitrator, keeping the most contested area on the ball field from being taken over by one side or the other.

Mr. Weber’s account of the umpireal job is not just his opinion. He quotes from major league umpires who explain their work as involving autonomy, responsibility and opportunities for judgment that resemble the work and responsibilities of, well, judges. The author explains that during two-plus years of attending umpire school and then interviewing almost 200 umpires and other baseball people,

[m]ore than one major league umpire spoke to me of calling balls and strikes as a kind of political enterprise, an activity requiring will and conscience and a point of view.

“It’s like the Constitution,” [current Major League Baseball umpire] Gary Cederstrom said to me. “The strike zone is a living, breathing document.” When I asked [MLB umpire] Tim Tschida why balls and strikes provoked so many arguments and so much enmity, he responded by comparing the rulebook strike zone to one of the most controversial Supreme Court decisions of the twentieth century. “Have you ever read Roe v. Wade?,” Tschida said. “It’s very clear. What it says is very clear. And we’ve still been fighting for twenty-five or thirty years over what it means.”

It seems, at least according to these umps, that Justice Jackson (who was, by the way, not a baseball fan) had it right about both their work and his own. Indeed, Jackson in his 1951 speech about “umpires” Learned and Augustus Hand seems to have been channeling some of the wisdom of one of that era’s, and humanity’s, greatest “judges”: an umpire’s qualities must include, said Branch Rickey, “the discretion of a judge….”

TV depicting the law, inaccurately

At CoOp, Corey Yung writes about the increasing inaccuracy of legal shows on TV, wondering whether Law & Order still employs lawyers as consultants and how that inaccuracy affects the understanding of law and the legal system that our students bring into the classroom. I long have shared this distaste for the often-stunningly incorrect depiction of law, lawyers, and the legal system. But this did remind me of my one brush with legal television:

When I was clerking on the Eastern District of Pennsylvania, we got a call in chambers from a production assistant on one of the legal shows (I think it was "Boston Legal") asking for minute details about the set-up of the courthouse and the courtrooms. The woman wanted to know who is in the courtroom during hearings and trials, where everyone sits or stands, where the district court and court of appeals are located within the building, all the way down to (I kid you not) the color of the striped ties and blazers that the Court Security Officers wear at the security stations at the building entrances. It seems the show was planning a story arc in which the lawyers would represent a prisoner in a habeas action in the E.D.Pa., with an appeal to the Third Circuit. And the PA's job was to find out all the atmospheric details.

I told her what I could over the course of about three conversations. But the entire time, all I could think was: You are going to get the legal issues and procedures so completely and utterly wrong. Why are you bothering to worry about the direction of the stripes on the Marshal's tie?

More Purim Spiel

Courtesy of the Forward, I found some great spoofs in time for Purim March Madness on Monday night. My favorite, Rahm Emanuel's parenting tips from his new book, “I Made You, I Can Break You Just as Easily: Lessons on Parenting From Inside the Beltway," appears after the jump.

Rahm Emanuel is the tough-but-fair, no-nonsense chief of staff for President Barack Obama. He is also a former chair of the Democratic Congressional Campaign Committee. The loving husband of Amy Rule and father of three small children, he’s taken lessons he learned in the rough-and-tumble world of politics and applied them to the challenges of fatherhood in his new book, “I Made You, I Can Break You Just as Easily: Lessons on Parenting From Inside the Beltway.” Although Emanuel may have faced tough questions working at the White House and in Congress, we bet he’s never faced anything tougher than these questions from our readers!

---

Dear Rahm,
Our boys are 2 and 4 and always seem to be pushing the limits. They take each others’ toys, throw things around and open closets I’ve specifically told them not to, all the while grinning cheekily at me. What should I do?
PERPLEXED IN SEATTLE
Dear Perplexed,
This boundary pushing is perfectly normal. Kids, and especially boys, are always testing the borders. You just have to set and reinforce reasonable rules and make clear what penalties they’ll suffer for transgression. As I tell my kids, “I can cut off your access. I can cut off your b—s. I made you and I can break you, so don’t make me f— you up.”
Rahm

---

Dear Rahm,
My little 6-year-old daughter is very shy and finds it uncomfortable to mix with others at her new school. How I can make it easier for her?
WORRIED DAD IN N.J.
Dear Worried Dad,
Going to a new school is always hard: a new environment, new people, new rules. What would really help is for you let your daughter know you are there for her, to talk through her problems and help her solve them. You can sit down with her and isolate the social divisions in the community and discuss ways to game them so that she can be queen bee. Help her understand that she shouldn’t be afraid to kneecap a few troublemakers to set an example, and that it is better to be feared than to be loved.
After all, this is your daughter’s happiness we’re talking about.
Rahm

---

Dear Rahm,
I feel as if I never see my family anymore — my husband’s always at work and my three kids are growing up and have their own lives. What can I do to keep my family a family?
SAD MOM IN CHICAGO
Dear Sad Mom,
My father used to say, “The family that eats together, stays together.” But that’s not always a practical solution.
Maybe your husband is really busy trying to save this f—ing country for Barack, and maybe now is not the best time for your touchy-feely bulls–t. Maybe you should pick up the phone instead of writing to newspapers, Amy. Don’t f— this up for me. I may not have made you, but I can still break you.
Rahm

Can Punitive Damages Law Inform the Copyright Infringement Litigation?

I'm just now getting a chance to listen to UCLA prawf Doug Lichtman's really cool podcast on the relationship between punitive damages law and the copyright infringement litigation. I haven't gotten to the point yet where my voice pops up, which is all for good since I often cringe at the playback of my recorded voice.  Here's the summary of the podcast, which is part of Doug's ongoing IP Colloquium series: 

Joel Tenenbaum looks a lot like every other defendant who has been accused by the music industry of illegally sharing copyrighted work online, but with one key difference: his defense attorney is Harvard Law School Professor Charlie Nesson, and Nesson is out to turn his case into a public referendum not only on the music industry's efforts to enforce copyright through these direct-infringer suits, but also on the copyright rules that make the industry litigation possible.
In this program, we engage Nesson's key arguments, focusing especially on Nesson's claim that copyright law's statutory damages regime runs afoul of constitutional protections against excessive and/or arbitrary civil damages awards.
Guests include Professor Nesson himself; Steven Marks, General Counsel for the Recording Industry Association of America; and three of the leading academic experts on punitive damages: New York University Professor Catherine Sharkey, Florida State Professor Dan Markel, and George Washington University Professor Thomas Colby. UCLA Law Professor Doug Lichtman moderates.

Justice O'Connor on The Daily Show

Justice Sandra Day O'Connor was on The Daily Show with Jon Stewart last night and was quite good. She talked a bit about her courts-education program and a bit about the Court and she did a pretty good job riffing with Stewart. The couple times I saw her live (and I never have had the privilege of meeting her) she always seemed a bit self-serious (and at one point she corrected Stewart that they don't have trials, just oral arguments). But she seemed very relaxed in the interview. At one point, when Stewart referred to her as the "swing justice," she stopped him and said she did not like the term; he then referred to her as the "most principled justice" and she said "Much better."

Part One:

The Daily Show With Jon StewartM - Th 11p / 10c

Sandra Day O'Connor Pt. 1

Daily Show Full Episodes
Important Things With Demetri Martin

Political Humor
Joke of the Day

Part Two after the Jump:

The Daily Show With Jon StewartM - Th 11p / 10c

Sandra Day O'Connor Pt. 2

Daily Show Full Episodes
Important Things With Demetri Martin

Political Humor
Joke of the Day

Meet the meshugene men in time for Purim...

Thanks to shows like "Will and Grace," Purim has gone mainstream.  Well, sort of. 

In time for Adar Shushan March Madness, my friend Rob Kutner (one of the writers for the Daily Show), has released Meshugane Men, a parody of Mad Men on Youtube.  The parody is written by Sheryl Zohn and Rob, directed by Mitch Magee, and features Amy Sedaris and a cast of 'meshugene geniuses.'  And if you're in NYC Monday March 9th, go see the longer version of the show! (Tickets at www.92yTribeca.org).

Operation Tough Love

Staying home on a Friday night and working, with occasional channel flipping or websurfing or even old fashioned just reading a book (i.e., not on a Kindle) is the tough love of my academic commuter marriage.  No wonder a segment on Dr. Phil (I swear it just happened to be on the TV when I turned it on) about the Maricopa County (Arizona) Sheriff’s Office’s recent “Operation Tough Love” seemed Tivo-worthy.

It turns out that on Valentine’s Day, Sheriff Joe Arpaio rounded up “deadbeat dads,” men who had failed to pay child support. The men were held on $10,000 bond in tents where the temperature reaches, according to Sheriff Arpaio, 148 degrees in the desert sun (Farenheit, I assume, as Sheriff Arpaio, who wears a tie pin shaped like a handgun and is known for making prisoners wear prison-stripes and pink underwear, doesn’t strike me as a Metric System sort of guy - he tends toward Medieval).

Local news reported that 72 people were arrested, but only 18 were deadbeat dads - the remaining 54 were arrested for other offenses, such as drugs (was this operation a pretext?).

This Very Public Event (read: spectacle, political stunt) seems like a waste of resources. It also seems counterproductive. What if Dad is deadbeat because, in our Meltdown Economy, he’s out of work? Will keeping him locked away unless he can pay really help his kids - given that this whole operation is (of course) “for the children”? I wonder why the sheriff isn’t instead out garnishing wages (if any) or seizing cars (if any) or homes (if any are even worth seizing these days)? Those methods seem more profitable.  The counter-productivity (and harshness) of Operation Tough Love is amplified when we consider that Dad could be injured in lockup by other prisoners, or from heatstroke, and that his brush with the criminal justice system could lead to job loss or stigma that harms his efforts to gain productive employment.  Consider also that the United States Supreme Court's expansive search-incident-to-arrest doctrine could lead to conviction for possessing various contraband found upon arrest, which under draconian drug laws could put the father in prison for years, rendering him truly unable to pay child support.

I Foley Admit that I don’t have the details of specific cases. Maybe these guys are notoriously deadbeat, and Sheriff Arpaio had tried all other means and failed.  But I wonder if the apparent political popularity of such roundups might cause them to become routine, leading to a de facto crime of poverty in our tough economic times - and yet another way for police to trigger their search-incident-to-arrest powers?

I don’t have a dog in this fight: I don’t have kids - another aspect, perhaps, of my own, two-city, Operation Tough Love.

H/T Dr. Phil.

USA TODAY: Don't Investigate Bush Administration “Excesses” (read: alleged monstrous crimes)

USA Today’s editors revealed Tuesday that they oppose efforts by Democrats such as Rep. John Conyers (D-Mich.) and Sen. Patrick Leahy (D-Vt.) to form commissions to investigate the many “excesses” of the Bush team.  We’re reminded that such decisions are ultimately political, not legal.  Let’s look at the hodgepodge of points USA Today’s editors made, as these points represent conventional political wisdom. (Unfortunately, Rep. Conyers’ own argument seemed fairly weak and somewhat apologetic.)

USA Today latched onto Democrats’ calling Bush Administration misdeeds “excesses.”  That’s a pretty tame term for what, if proven, would amount to major crimes: torture; searches conducted without warrants or probable cause; aggressive war.  I was struck by the USA Today's reflexive sense that the investigation would ultimately be partisan.  It’s partisan to investigate war crimes? Democrats should not be painted as partisan for pursuing investigations.  Instead, Republicans should be faulted as partisan for not joining these efforts.

If I am ever accused of a crime, I will request a “commission” to look at my “excesses,” rather than a jury.

USA Today said investigating the alleged abominations would pose “a divisive distraction” from “rescuing the economy, controlling [the US's] exploding debt; fighting two wars and fixing other pressing problems.” Echoing President Obama, the editors said we should look forward, not backward.  I’m reminded of the workaholic who toils long and late to avoid introspection.

If I am ever accused of a crime, I will cite the crises of the day, and our need to look forward, not backward at my excesses ….

Where’s the principle here - would balmier times change the editors’ minds?  Moreover, these far-flung problems may be linked. Had the Bush Administration followed the rule of law and not wasted time and brainpower, for example, building an entirely new justice system designed to deny rights to a small number of people at Guantanamo, our leaders might have been able to think more clearly about other issues. Had the Bush Administration (and our major newspapers such as the Washington Post and New York Times, and our citizenry, for that matter) weighed the putative evidence of Iraq’s supposed WMD more carefully and followed international law, we would not be paying billions of dollars for all that unnecessary killing. 

The USA Today editors wrote, “Then there is the question of motive. Unlike Richard Nixon, whose subversion of the Constitution was meant to perpetuate his power, Bush’s post-9/11 decisions were simply his best judgment about how to keep the nation safe.” That’s reassuring, but it begs the question: Can we know motive without even a “justice lite” investigation by a commission that will ultimately end with a big group hug?  Also, the illegal methods - torture, widespread eavesdropping - are not really effective for information-gathering.  Invading Iraq did not make us safer. These post-9/11 decisions - especially endless war - unleashed methods commonly applied by governments that aim to increase their own power and crush dissent. At the USA Today, the government’s (proclaimed) ends justify the means. 

If I am ever accused of a crime, I will say I simply had good intentions.

The editors also reassured us that, “The fact is the Bush administration’s excesses are already well-documented, thanks largely to journalists, historians and Democrats who took charge of congressional oversight after 2006.”  I don’t remember lots of meaningful Democratic oversight after 2006.  I do remember continued funding for the Iraq occupation and immunity for telecoms involved in warrantless “excesses.”

If I am ever accused of a crime, I will point out that everybody already knows everything I did, and that the government now trying to bring me to justice was in power at the time of my excesses - so what’s the point?

The USA Today concluded, “Congress’s attention is better devoted to solving problems than to exacting retribution.”

If I am ever accused of a crime, I will say that government’s purpose is not to exact retribution, but to solve problems.

Maybe a deeper message lurks: If our political leaders hadn’t spent their time and our money seeking retribution for 9/11 by engaging in divisive distractions such as invading and occupying Iraq and torturing people at Guantanamo and beyond - acts that killed and maimed and harmed thousands of innocent people - maybe we wouldn’t have so many crises in the U.S.A. today.

The USA Today’s political arguments are unconvincing. The editors' tentative support for only a limited investigation into “one or two key unresolved questions, such as whether torture actually produced information that saved lives,” seems small-minded and backside-covering in the shadow of the monumental crimes alleged.  The crimes alleged are reprehensible, monstrous, among the worst crimes human beings can commit.  We owe ourselves and the world - especially our victims - a full airing, and punishment of the perpetrators.  Let’s rise above partisanship and investigate.

Fostering Inclusion

Cynthia Tucker wrote a very thought-provoking editorial last Sunday about how officially setting aside one month of the year as Black History Month simply reinforces that the history and achievements of those of African descent in this country somehow isn't a part of American History. The same could be said of Women's History, and probably other groups. The goal initially was important--to raise people's awareness of that history, but the process ends up perpetuating the "otherness" of that group.

I have been struck recently by a similar phenomenon at events. Sponsorship by an organization linked with race or gender leads to attendance almost exclusively by members of that group, despite wide advertisement and the clear communication that the subject of the event would focus on issues of wide interest. Few men come to the women's bar group seminar on communicating effectively across generations. Few white people come to the same seminar sponsored by a group of minority lawyers. Even worse, sometimes when broad-based organizations hold events to commemorate or celebrate something linked with a non-Anglo race/ethnicity/national origin, women, or sexual minorities, white people, men, and straight people tend not to go. And even though it's probably not due to any intentional slight, often the non-attendance seems to be a rejection of the group or the thing commemorated.

So how might we foster inclusion in the face of what is well-meant, but counterproductive, in the case of Black History Month or the events I mention, or because of inertia, as may be the case for at least some types of events?

Baseball, Steroids, and Jurisprudence

Here is a question for the jurisprudes and the crim law types:

In 1991, baseball established by rule that it was against the rules of the game to use a range of drugs, including steroids. There was no testing, no enforcement mechanism, and no determinate punishments for using steroids. That was the state of affairs until the start of the 2006 season, thus it was the state of affairs from 2001-03, when Alex Rodriguez has admitted to using steroids and when he tested positive. Of course, the commissioner did have catch-all "best interests of baseball" powers, so punishment was possible through that power. But absent testing, there arguably was no way ever to find out that someone was using steroids.

So, my question: Has Rodriguez "cheated" or "broken the rules" of baseball (put aside societal laws against steroid distribution, possession, or use) given the legal state as described. Is a stated legal prohibition that is not, as a matter of law, enforceable or punishable, a legal prohibition that can be violated?

Thank God We're Not Discussing the Michael-Phelps-Smoking-Dope Story!

Is anyone surprised that a 20-something über-athlete millionaire would smoke some pot at a party? My sense is that most people don’t care about this. (I live in Massachusetts, which recently decriminalized possession of less than an ounce of marijuana for personal consumption.)  This is one of those media stories that exists because there's a photo to display - though the Olympian’s lung capacity alone might make a double-hearsay report of the event newsworthy ("Phelps Finishes Off World Marijuana Supply").

“But Phelps is a role model!” some people say. If Phelps is your role model for swimming and now you’re confused and think that maybe you can smoke dope and still win eight gold medals in one Olympics, I say, Go for it. You probably won’t win eight gold medals (or a single silver or bronze) even if you don’t smoke dope, or, for that matter, even if you’re a drug-free teetotaler.  If Phelps serves as a more general role model, then I think we’re all better off knowing that people can succeed in various endeavors without having to be “perfect” - why let false idols rule our lives?

Here’s a hypothetical question. Assume it’s a jailable offense to smoke dope as Phelps has.  Should Phelps go to prison? Why or why not? Now assume it’s a mandatory minimum two year sentence. Is putting Phelps in dry dock a good use of our limited resources? Perhaps the Phelps story might open up public discussion about the so-called "War on Drugs."

Perhaps I'll raise Phelps’s case Friday at The Road to Prison Reform: Treating the Causes and Conditions of our Overburdened System, sponsored by the Connecticut Public Interest Law Journal at the University of Connecticut School of Law. See the program here.

And on that note, be sure to catch the California Correctional Crisis Conference next month, which former PrawfsBlawg Guest Hadar Aviram is involved with.

What the oath retake looked like

Mike Dorf has one thought. I think it was more like this:

We know where you live

Opponents of Prop 8 have put up a map purporting to show where donors to the "Yes on 8" campaign live. You can get the name, occupation and amounts of donation for each mapped donor. While you can't get the exact address, it would be quite easy to use the map to find the homes of donors.

The information used to create the map is all publicly available, but it does make it more accessible and convenient to use. But for what end?

Others have asked whether there is an implicit threat in the creation of a map like this and it does seem that those who created it must have contemplated, if they did not intend,  that it be used to place pressure on supporters of Prop 8. Of course that doesn't mean violence or even economic reprisal. It could be used to create a march route or even to facilitate social ostracization.

I appreciate that the reaction of many - who see support for 8 as a form of hatred and support for a profound injustice - won't care. Whatever happens to donors (short of violence, for most) is well deserved.

Legal questions might revolve around whether this type of speech targeted at donors to a political campaign can or should be banned (I think not) or whether campaign disclosure laws ought to or even must be modified. Eugene Volokh points out that the state may not compel the disclosure of contributors "to a minor political party that can show a 'reasonable probability' that the compelled disclosures will subject those identified to 'threats, harassment, or reprisals.'"

It seems unlikely that this rule would apply to supporters of 8 which did. after all, win. I don't think that  supporters of 8 could make the requisite showing, but a series of interesting questions present themselves. 

Does a constitutionally significant likelihood of threats and reprisals turn on whether the threatened party is associated with a political minority? Even if it does, what is the relevant community for the purposes of ascertaining minority status. Supporters of 8 who live in San Francisco are certainly a political minority - even a despised one - in the city that they leave. What of those who work in an industry - say academia or the arts - in which opposition to 8 is strong?

But beyond these legal questions, I wonder if this type of strategy is smart? Can you really convince the larger society to expand its notions of tolerance by being intolerant of those who resist? Supporters of SSM often draw analogies to the civil rights movement. We do not tolerate racism. Why should we tolerate what they see as similar attitudes towards gays and lesbians?

The political problem, it seems to me, is that there is nothing like a consensus that the analogy is apt, particularly when the issue is marriage (for which many people seem to believe gender and sexual orientation is relevant) and not the denial of other civil rights on the basis of sexual orientation. I wonder, in particular, if the embrace of the civil rights analogy has cost supporters of same sex marriage support in the African American community where I suspect there are a fair number of people who do not believe that gays and lesbians have been subject to the same type of oppression as blacks.

Supporters of same sex marriage would argue that they are engaged in an attempt to change attitudes and, over the long run, the civil rights theme will work. Maybe so. But boycotts and other attempts to ostracize those that have simply supported a particular view of marriage (as opposed to discriminating against gays and lesbians in other ways that would provoke public outrage) do provide the supporters of 8 and similar measures with, whether or not you buy it, their own civil rights narrative.

Cross posted at Marquette University Law School Faculty Blog

Exiting Nixonland

Forty years ago this January, America awaited the inauguration of another President who marked a sharp break with the previous 8 years, and who promised a whole new logic of governing.  That president was Richard Nixon, and with his election, albeit a narrow one, America began four decades of a war on crime that has come to transform our social and political landscape.  In 1968, fewer then 100 Americans were in prison for every 100,000 free residents.  In 2008, 509 Americans were in prison for every 100,000 free residents. [see the latest report from the Bureau of Justice Statistics]

Nixon was not the first political leader to call for a war on crime.  Efforts to position the federal government as a national leader in crime fighting go back to at least the first years of the Roosevelt administration, when J. Edgar Hoover’s FBI emerged as a media focus.  But conditions by the late 1960s had produced something on the order of a national panic around violent crime.  The rate of reported robberies and homicides had more then doubled since the beginning of the decade.  A series of violent riots had broken out across major American cities in the summer beginning with Los Angeles in 1965, and increasingly volatile demonstrations against the Vietnam war culminated in the police riot at the 1968 Democratic convention in Chicago.  As Richard Perlstein puts it in his terrific history of that era [Nixonland p. 294], “a terror over law and order engulfed the nation’s cities…”

Nixon was not the only or even first politician to respond to this growing terror.  LBJ, had appointed a Presidential crime commission early in his term, and was the first president to use the phrase “war on crime” to describe his objectives (although he still imagined it to be a front in the war on poverty).  Nixon’s most serious rival, Robert Kennedy, had made confrontation with the mafia a major feature of his Justice Department as Attorney General 1961-1965.  In his primary campaign against fellow peace candidate Eugene McCarthy, Kennedy promised a vigorous effort against rioters and published a newspaper add listing proposals for “Law Enforcement in the Cities,” noting that McCarthy had none (Perlstein p. 272).

But Nixon moved beyond his rivals by focusing his campaign on the slogan “law and order.”  Once in office, he pushed aggressive crime fighting powers (first in DC) and defined his increasing demands for executive control as a necessity to combat the forces of crime and disorder in American society (demands that ultimately led to criminal behavior by the President and his aides). 

Nixon’s resignation in 1973 and the crisis of “law” (rather than law and order) that his presidency represented, focused the next two presidents, Ford and Carter, on other issues.  But every subsequent president including Reagn, both Bushes and Clinton, have made crime fighting a central piece of their leadership, helping to build a broad political and social movement that has transformed not just our prison population but our democracy [see my book, Governing through Crime].  In some periods this has been more visible, especially during the late 1980s and early 1990s when President Bush made the war on drugs his most visible domestic initiative, and President Clinton promised to put 100,000 police on American streets.  The presidency of George W. Bush has largely been defined by his war on terror, and indeed has been criticized by some police leaders for de-emphasizing the war on drugs.  But the fear based governing ideology of using any mean necessary to eliminate malevolent individuals, is a direct extension and escalation of the war on crime. 

In posts this month I will try to highlight some of the enduring effects of the war on crime, and generally argue that real change in America requires a vigorous and explicit effort to end that war and address the severe social destruction it has caused.  I do so with some real optimism that Barack Obama might be the president to lead that effort, forty years later.  Despite the fact that the Obama campaign hewed closely to consensus tough on crime positions on most conventional policy issues, like the death penalty, two features of his campaign give this polemicist hope.

First, vigorously and repeatedly, Obama denounced the politics of fear and suggested that political victories based on it were inevitably compromised.  This was taken mainly in the context of the war on terror, but as suggested above, the politics of fear is more accurately anchored in the campaign that ended forty years ago this past November.

Second, Obama is our first president in a generation, at least since JFK, who identifies with urban America.  While the war on crime was early on promised as a panacea to save cities, its effects have helped drive two generations of middle class families to embrace life in sterile and often segregated suburbs.  Obama recognizes that convincing the middle class to move back to cities is a key to changing our high carbon, high stress life style, and that to do so he must break through the frame that for forty years has linked cities to crime.

Is New Year's the greatest holiday?

I’ve never thought much about New Year’s as a holiday, and when I have, it’s mostly struck me as a second-tier holiday, closer to Labor Day than to Thanksgiving. (Nothing against Labor Day, but for most people, myself included, it’s pretty much just a day off in late summer, not a day with much special relevance of its own.) But as it approaches this year, I've been thinking that New Year’s (Eve and Day, jointly) might be the perfect holiday. Consider its virtues:

1. In different ways, it encourages both socializing and introspection.
2. As to its social/festive dimension, you are encouraged to share the day (or, at least, the eve) with others, but you can choose whom you want to spend it with.
3. Immoderate eating and drinking are condoned (within reasonable bounds, of course), but there’s no set menu. If you’re not into turkey, pumpkin pie, candy corn, chocolate bunnies, latkes, eggnog, or whatever, no worries. (One might, however, detect a slight pro-Champagne bias vis-a-vis tippling at the particular moment of midnight, and perhaps more generally. I’m not a huge sparkling-wine person myself, but neither do I spurn it if offered, so I’m pretty much OK with this.) I guess teetotalers might consider the holiday to have an overall bias in favor of alcohol consumption, making strict abstinence a little socially uncomfortable. But again, you can decide who you’re spending the holiday with, so any such concern can be mitigated by your choice of evening companions.
4. The holiday can also be an occasion for romance if that’s your preference (and if the option is available to you), but it doesn’t revolve around relationships. So it’s possible to skip out on partying in favor of a quiet evening at home, and also possible to go out and celebrate if you're unattached. Indeed, a festive holiday gathering might provide an opportunity to meet someone -- and not just a random person, but a friend of a friend, with whatever degree of quality-control that might indicate (though that might introduce its own issues, too)
5. As to the holiday’s more reflective dimension, it encourages both looking back and looking forward: remembrance of past times and the dear departed (the theme of “Auld Lang Syne,” if I understand that song); self-assessment and contemplation of how to make yourself a better person; and hopefulness about what might be in the future. I’d say that message, or agenda, stands up pretty well against any other holiday’s, secular or spiritual. And of course, New Year’s is an ecumenical holiday, open to all.
6. No gift exchanges, hence no gift-related stress and/or awkwardness.
7. Football!

New Year’s seems almost ideal, subject to the important caveat that you need to avoid spending the day itself nursing an atomic hangover. Also, if you have small children (as I do), they won’t be sleeping in just because you were up late, and that’s a problem. Come to think of it, maybe “the end of Daylight Saving Time” is the perfect holiday ...

Happy New Year, everyone!

Other Carols

Michael's taxonomy of carols left out one important category: Chanukah Carols. Herewith, the Top 5 (as seen on a greeting card):

5) "Silent Night, Shmilent Night (You don't call, you don't write)"

4) Shlepping through a Winter Wonderland"

3) Oh Little Sale at Bloomingdale's"

2) "I'll Be Home for Chanukah (So Save Me Some Latkes)"

1) "What (Ungrateful) Child is This?"

Fictionalizing the Shoah, or Why tenure remains important

I came late to the story of Herman and Roma Rosenblat, two survivors of the Shoah (he at Schlieben, a sub-camp of Buchenwald, she pretending to be Christian and living on a nearby farm). The tale they told for a decade until last weekend is that during seven months in the winter of 1945, Roma (then nine) met Herman (then a teen) at the camp fence and tossed food to him over the barbed-wire fence. They then met on a blind date in Coney Island in 1957, told their stories of the War and realized who the other was; they fell in love and married and remain together, retired near Miami. This love story landed them two appearances on Oprah and a book contract with Berkley Books (a division of Penguin Group); their story was the subject of a children's book published last fall and of a movie, titled Flower of the Fence, scheduled to go into production in March.

But Ken Waltzer, a Holocaust expert and the director of the Jewish Studies program at Michigan State, looked into the story and began calling it into question. So did Deborah Lipstadt of Emory University, an appointee the United States Holocaust Memorial Council. The New Republic did an extensive investigation, including talking to other Schlieben survivors, some of them members of Rosenblat's family, who denied the story. Last Saturday, Berkley canceled the book after Rosenblat admitted to Harris Salomon (the film producer), his agent, and the press that the story was false. Roma was, in fact, in hiding in a different part of Poland, 200 miles away; Herman did not go to the fence to get food every day for months on end. TNR coverage here, here, here, and here. Comments from Waltzer here and here and from Lipstadt here and here.

I want to touch on two points in this story--one on the merits of the memoir controversy and one closer to the academic focus of this blog.

On the merits, I agree with the argument that falsified stories about the Shoah are troubling. But not because I think that enough small falsifications leave room to deny the entire thing. Rather, my problem is that this event was so horrific and that horror is lost amid false stories that humanize the events and, in the course of humanizing, make them seem more benign. The detail that caused scholars to question the story was that the only space along the fence at Schlieben where such an encounter could have occurred was right by the SS barracks; no prisoner and no Jew in hiding would or could deliberately walk that close to an electrified, barbed-wire fence, much less to the barracks and to the SS on a daily basis. A story, purporting to be true, that suggests otherwise makes the SS, and everyone's situation, appear less dangerous.

Waltzer sharply criticized the "culture makers"--Oprah, Berkley Books, producer Salomon--for failing to investigate or even question the veracity of a story that was on the "far end of implausibility" to begin with. He argues that the willingness to accept the story "shows something about the broad unwillingness in our culture to confront the difficult knowledge of the Holocaust." His suggestion is that the culture makers fail when they try to sugarcoat the Shoah for Middle America, resulting in miseducation rather than education. The flip side, as expressed to TNR by film-producer Salomon, is that the "candy-coated message" gives the story resonance with middle America and "can do more to teach people about the Jewish experience during the Holocaust in a way nothing before has done."

Count me on Waltzer's side of the fence (so to speak) on this one. I do not believe that we can teach about the Jewish experience during the Holocaust (or any experience, frankly) by presenting a story so sanitized that it presents a false (not just fictitious, but false) image of reality. Quite the opposite--we disserve the Jewish experience by giving it an impossibly pleasant veneer. Interestingly, Salomon for now plans to go forward with the movie, which he says was to have been a fictionalized "based on" story, rather than a true-to-life translation of the memoir. Salomon apparently sees this story, fictional though it may be, as much like the recent film The Boy in the Striped Pajamas in depicting a friendship between people on opposite sides of the camp fence. But, as the TNR story pointed out, that at least acknowledged that it was a work of pure fiction. (See here for a taxonomy of Hollywood Holocaust plots).

Now on to the academic point: This story suggests something about the continuing need for tenure. It is quite common to question that institution, given the negative incentives it provides. Or it is used to protect scoundrels, those who use it to write and say outrageous and offensive things (something that I am all for as a general matter, but not all people and not all universities are). But sometimes tenure still is necessary to protect scholars who are doing the right thing.*

As Waltzer's skeptical investigation, and the reportage by TNR, intensified, there was pushback from "culture makers" with a vested interest in this project going forward, most notably from producer Salomon. One move was to contact the dean at Michigan State to question and complain about Weltzer's research. Salomon also called it "bloody repugnant" that Weltzer spoke with TNR. Salomon also went after Lipstadt via e-mail, suggesting that she was slandering Rosenblat by questioning the story, that he (Salomon) knew more about the Shoah than she did, and that her questioning of the story is a "sin to the memory of all those who perished so long ago."

Of course, in neither situation did anything happen beyond sharp criticism of the scholars--which is, of course, completely fair game. And in neither situation did the University decline to support the professor fully and there is no reason to think they would not have done so had it come to that. But a university granting tenure is Ulysses tying himself to the mast--a precommitment that it saves it from even the possibility of its lesser tendencies. Perhaps the University never even will be tempted and perhaps scholars never will "need" to rely on tenure (I frankly never expect to have to). But it continues to serve a purpose, even if it only is wielded in the rarest and most exceptional circumstances. If I am Ken Waltzer, I feel better and safer entering into this fray knowing that I have tenure behind me.

* Yes, I recognize the subjectivity of those last two sentences.

Carol categories

It's a little late for this post, which also has nothing to do with law or prawfdom, but during this holiday season I've been thinking about how there are different kinds of "Christmas" songs, or how such songs are about "Christmas" in different ways. (I will henceforth use "Xmas" for "Christmas," since it's easier to type. As an aside, why does the "X=Christ" translation only occur here? I'd like to see more references to "Western Xianity," or "Xopher Columbus," or "Jesus X.") I think these songs break down into four meaningfully distinct groups.

Category 1: Winter Songs. Some songs are associated with Xmas and seem to be heard only during "the holidays," but are really about the season of winter, and would be just as appropriate in mid-February as they are in mid-December. These songs include "Jingle Bells," "Jingle Bell Rock," and "Sleigh Ride," all of which are about riding in a sleigh; "Winter Wonderland"; "Frosty the Snowman"; and "Let it Snow, Let it Snow, Let it Snow." None of these have any more relation to Xmas than does, say, "Baby, It's Cold Outside." It's perfectly OK to continue singing or whistling any of these songs for the next two months without feeling odd about it. Really. Go right ahead.

Category 2: "Holiday" Songs. These songs recognize the existence of Xmas, but have no religious content at all. Xmas in these songs has the following features: it's a holiday; it's at the end of the year; and spending it with loved ones is important or desirable. In many cases, "Xmas" could be replaced with Thanksgiving, or a late-year birthday, or Festivus with no real damage to the spirit of the song (though in some cases the song includes certain Xmas-related details, like references to a tree or gifts instead of a pole or the airing of grievances).

These songs don't take any direct positions on matters of faith. They merely note the existence of Xmas (or the "holiday season") and, often, associate it with a positive sentiment we might call "good cheer." Obviously the "holiday season" revolves around a specific holiday which is in fact a religious holiday, but these songs themselves have no religious content. These, then, are the sort of Xmas songs that can most easily be sung by Barbra Streisand, or written by Irving Berlin. Even non-Xians can endorse a day off to spend with your family (though, of course, they might prefer if the day off were not given because of its importance to Xians in particular).

Perhaps the archetypal song in this category is "Home for the Holidays," which doesn't even mention Xmas. But there are lots of others too: "The Most Wonderful Time of the Year"; "Deck the Halls"; "Silver Bells"; "White Xmas" (and, for that matter, "Blue Xmas"); "I'll Be Home for Xmas"; "Have Yourself a Merry Little Xmas," which I find quite moving when sung with the original lyrics, written during WWII (they seem to be making a comeback during the current wartime period). Many of these are among my favorite holiday songs, except "Most Wonderful Time," which is clearly overselling, in my opinion.

Some of the great modern pop songs about Xmas fit into this category too: "Xmas Wrapping" by the Waitresses; "Happy Xmas / War is Over" by John Lennon; "Fairytale of New York" by the Pogues, which is frequently voted the most popular Xmas song in the UK, notwithstanding any controversy about its lyrics.

Category 3: Santa. Too many songs to name, and they're mostly easy to spot, though some are borderline (e.g., I'd put "The Xmas Song" in this category, though its spirit might be more in Category 2). Santa songs are more Xmas-specific than the Category 2 songs, though they're about an independent Xmas mythology of flying reindeer, diligent elves, etc., rather than about the birth of the (alleged) messiah (whose central message, it must be noted, flies in the face of any strict "naughty or nice" accounting scheme). Still, the Santa mythology is quite evidently Xmas-specific and therefore can easily be seen as emitting a pro-Xian, anti-non-Xian vibe -- more so than the Category 2 songs, in my view, though I'd be curious to know what others think. Santa songs might also irritate due to their seeming (or, sometimes, outright) embrace of Xmas-related consumerism, which Xians as well as non-Xians might oppose.

I guess "Father Xmas" by the Kinks, which imagines a department-store Santa getting mugged, would also fall in this category, though it's not exactly pro-consumerism.

Category 4: Baby Jesus. These songs are For Believers Only. Their lyrics contain one or more of the following: a manger; shepherds; three "wise men" and/or "kings" following a star; angels; a baby boy who would grow up to be Our Lord and Savior.

I tend to think Category 4 songs belong in church, or else in the home. Even the ones I like make me feel uncomfortable when they're sung, say, on a usually non-religious TV show. I also tend to think, maybe even more strongly, that only Category 4 songs belong in church. As a child attending Xmas Mass, I always found it inappropriate if Santa showed up at any point, which he sometimes did.

I don't know why I've been thinking about this, except that it's something to do other than grade exams.

The significance of defining sport

I have written on several occasions about how to define sport and what qualifies as sport, a common game among “sports-and-____” academics. A frequent response to these posts has been “so what, what difference does it make?” And, in truth, it is largely an academic exercise and a fun way to make fun of gymnastics, figure skating, and golf. But, courtesy of Matthew Mitten at the Marquette Faculty Blog, it may have practical import after all.

The Wisconsin courts must figure out whether cheerleading is a sport, and a contact sport at that. A high-school cheerleader who fell and suffered severe head injuries while performing a maneuver sued her fellow cheerleader for negligence in failing to spot her properly. The defendant argued that he is immune under a state statute that eliminates liability for negligence (but not reckless or conduct taken with intent to cause injury) for injuries caused "in a recreational activity that includes physical contact between persons in a sport involving amateur teams." The appellate court assumed that cheerleading was a sport and acknowledged the athleticism involved in cheerleading. And, although the court did not mention, there are high-school cheerleading competitions (often seen at midnight on ESPN 8). But the court held that cheerleading was not a contact sport within the meaning of the statute because physical contact between opponents is not an element of the activity, thus the immunity did not apply. The case now is before the Wisconsin Supreme Court, which heard oral argument last fall.

I am troubled by the appellate court's approach (although not the result) because I think it might have unintentionally eliminated from the scope of the immunity activities that plainly are sports that should be covered by the statute but that also do not typically involve physical contact between opponents. The first example is baseball--not much direct physical contact with opponents, only with objects thrown or hit by opponents. So could I sue the opposing pitcher for a negligently thrown beanball? Could I sue a teammate who did not get out of the way when I called for a flyball? Perhaps plays at the plate or on the base paths, involving potential collisions with opposing players, are common enough that baseball would fall within the statute as interpreted.

OK, what about tennis--it is virtually certain that physical contact with my opponent on the other side of the net is in no way part of the game. But would this mean that I could sue my doubles partner if I am injured when I crash into my him (which, frankly, is more likely than crashing into my opponent) because of his negligence? Would this also would mean that I could sue my opponent if I was injured when he negligently hit me with a ball (e.g., serving when I was not ready)? Or track and field--if I am a long-jumper, I expect no physical contact with my opponent. Could I sue him if he jumped before I had a chance to leave the pit and landed on top of me?

The statute was enacted in response to a 1993 Wisconsin Supreme Court decision arising from an injury suffered during a soccer game, so the legislature had true "contact sports" in mind. And the appellate court emphasized that cheerleading is not a contact sport in that way. But baseball, tennis, golf, track, etc., also cannot be classified as contact sports in the same way as soccer. Now maybe this was intentional and the legislature did want to treat contact sports differently from other sports. But if the legislative concern was about not wanting to chill participation in amateur (especially high school) sports (which might come with a standard of care lower than recklessness), liability in any of the situations described above would defeat that purpose. Assuming the legislature did not intend to treat contact and non-contact sports differently, a court might get around this, at least in my baseball and tennis hypos, by reading the statutory term "physical contact" to mean contact with objects propelled by an opponent. And maybe track would fall in because physical contact is at least a possible element of running side-by-side with an opponent. But this is getting somewhat difficult to maintain.

Alternatively, a court might focus on the statutory term "sport" and find a workable definition of that word--exactly what I and others have been doing as a parlor game. My current favorite standard defines sport by four elements:

1) Large motor skills.
2) Simple machines only.
3) Objective scoring or at least the possibility of determining a winner by something other than subjective judging.
4) Competition among contestants.

Cheerleading satisfies ## 1 and 2, but fails # 3 and possibly # 4 (we would need to know more about whether this team participated in competitions). But track, baseball, and tennis--the examples above--satisfy all four criteria. This gets at the result--the cheerleader's claim can go forward--without cutting large swaths of sports out of the statute.

A Jew on Christmas

Dahlia Lithwick has a fun piece on Slate about which Christmas specials Jewish parents do and do not allow their children to watch.

Our three-year-old does not like to watch TV all that much, so we have not had this particular problem. But she has been trying very hard lately to understand about this holiday that we do not celebrate but that so many other people (including two of her best friends) do celebrate. Her curiosity is further piqued because her Jewish preschool is across the street from a church with a Christmas tree lot and a giant inflatable Santa. She is not upset by this--no "Why can't we have lights on our house" or "I want Santa to come to my house" (at least not now--come see me when she is eight). But she has been asking a lot of questions. Of course, my wife and I both try to be sanguine about the fact that Jews are a minority in American society and, as such, are going to be surrounded by many of the majority's practices. So, at least for now, I do not feel as if we are struggling too much with how to explain it all to our daughter.

Finally, just because it's fun and I agree with Dahlia that this is the best Jewish song of the season:

Minority College Football Coaches and Civil Rights

The new-old controversy in college football is the lack of Black head coaches in Division I-A college football. With recent firings and resignations, there are four Black coaches (out of 119 schools) in a sport in which approximately 46 % of players are Black. Exacerbating this problem is the recent trend of current head coaches at major programs designating a current (usually white) top assistant as the new future head coach whenever the current coach retires, a process that pretermits any future coaching search in which outside, Black candidates might be considered for the job. Essentially, the practice locks-in the current state of coaching at many major schools.

Richard Lapchick, one of the leading scholars on collegiate sport, race, and society, criticizes this state of affairs. He argues that the NCAA should adopt a version of the NFL's "Rooney Rule," which requires that teams interview at least one minority candidate for a head coaching job. Lapchick calls his proposal the "Robinson Rule," after the late Eddie Robinson, the all-time-winningest D-I coach at historically back Grambling State (a D-I-AA school) who never even got an interview for a D-I-A head job.

So here are my questions for con law and employment-law types out there: Would such a rule be constitutional under the Fourteenth Amendment? The NCAA is not a state actor, but individual state schools would be in following and carrying out such a rule. So, given the current state of Equal Protection law, would it be unconstitutional for a governmental actor to automatically interview and give serious consideration to a minority for every position? Or, as to private schools, does it violate Title VII? Finally and conversely, would the NCAA's failure to adopt such a rule (or a similar rule designed to ameliorate the dearth of opportunities for minority coaches) violate Title VII (Lapchick reports that the Black Coaches Association is considering using Title VII to challenge current hiring practices)?

(Mis)education, Part Two

Many thanks to commentators on my last post about education and education-related policy. The points made are not necessarily antithetical; it’s true that most employers won’t inquire, in an interview, as to one’s knowledge of various works if that knowledge isn’t central to the carrying out of the position sought. I don’t believe that fact means the knowledge is less useful, though, or less important (even if the trend that I lament in the States is just as strong elsewhere; the popularity of something indicates neither its correctness nor its wisdom, as we well know (I will refrain from giving examples from the fashion world here)). For one thing, knowledge empowers—just ask these guys. For another, as pointed out, learning civics, studying the classics, understanding developmental arcs in various contexts are all as important in and of themselves as they are key to teaching one how to think. And having access to information is the best means of broadening one’s mind—which brings me to the point of this post: book banning.

In a small resort town across the Idaho border from where I live, the upcoming December school board meeting will address an ongoing debate about whether Aldous Huxley’s Brave New World should be banned from the area high school. At present, the vote to ban is split 2-2, and the fifth board member is to cast the deciding vote at the meeting. My own (admittedly quick) research indicates that in addition to Huxley’s work, books by Maya Angelou, David Guterson, Toni Morrison and Walter Dean Myers have all been challenged as improper material for pupils in that school district. In fact, according to a teacher at the school, the district has banned 78 books from the high school and 39 from the middle school (I’ve contacted the teacher but have yet to verify these numbers).

Even if the professed motivations of the school board (what they are, I don’t know) could pass constitutional muster (per Pico), I’m concerned with the willingness of parents to actively prevent their children from being exposed to Brave New World and other challenged works. Regardless of whether these parents can, via the school board, ban these works from their kids’ curricula, why would they want to? In an age in which violence is broadcast unrelentingly in media that is aimed at both children and adults, I find it hard to believe that banning these works is a protective act. Rather, it seems to me to be another means of quashing knowledge and exposure—another means of creating an under-educated class.

The (Mis)education of America (Lauryn Hill not included)

I hope that the Prawfs community, bloggers and readers alike, are enjoying a lovely holiday weekend.

I’ve been offline for a while, but I have been collecting a few topics of interest, about which I’ll post in the next few days. The first is a report by the Intercollegiate Studies Institute (ISI) chronicling the seeming incompetence of Americans, college educated and not, in relating basic facts in American history. (Chronicle.com subscribers can see a summary here.) The report’s findings are based upon user-provided data from this quiz, which uses a multiple-choice format to inquire as to knowledge of the content of important documents, speeches, and eras in U.S. history. According to the ISI, over 1,700 of the 2,500 randomly selected test-takers failed; the average score was a dismal 49% (overall; the average for college graduates was also a failing 57%). Elected officials scored even lower, averaging 44%; the statistics about elected officials taking the quiz included such gems as the fact that nearly 1/3 were unaware that the inalienable rights referenced in the Declaration of Independence are life, liberty and the pursuit of happiness. To be sure, it’s a small sample, if a telling one (in a country in which 1/3 of high-school kids couldn’t find Louisiana on a map after Katrina, we perhaps should not be surprised that the branches of government are still a mystery to some). But are Americans really as woefully ignorant as these results indicate (and as an aside, would most fail the new citizenship test)?

Maybe, although I’m not sure this quiz is the best barometer. In reviewing it, I was struck by a couple of things. First, the last several questions are searching for ‘knowledge’ that is unrelated to civics lessons as one might define that concept—the study of U.S. history, government, and the rights and duties of citizens, for example. Second, those questions are also arguably geared toward a particular mindset or ideology: One question asks about the effect of international trade and specialization; another inquires as to what ‘fiscal policy combination’ is most likely to be used to stimulate the economy in a recession. I’m guessing that at least a few reasonable minds would disagree as to the proper responses to those questions.

That said, I do think that one thing the quiz results indicate is the need for consistent, thorough lessons in political history and basic constitutional enumerations at the high school level and, in my opinion, a broader commitment to liberal arts education in the university setting. (I’d also add a global component, but that’s a topic for another post.) Is it a pipe dream to want a bevy of citizens who are well versed in basic facts like the topic of the Scopes Trial? Or is it a professional/personal bias to think such a fact is basic—or that it is something that most Americans should know?

Why We Watch (Guest Post From Frederick Vars)

I've already written here about my enthusiasm for the work of my new colleague Fred Vars, who brings a set of valuable methodological tools to a variety of interesting questions.  (Commenters last time asked: is it law?  is it economics?  My answer -- whatever.  It's interesting.)  Fred must have a sweet tooth for sports, because following his interesting paper on the optimal targeting of soccer shots, he's sent along this interesting tidbit on why people watch losers in baseball.  Here's what Fred has to say:

The climax of the baseball postseason this year was not the World Series.  It was game five of the ALCS, in which the Red Sox, down by seven runs in the seventh inning, climbed back to beat the Tampa Bay Rays.  A surveyusa poll of Boston area respondents showed, tragically, that roughly half (47%) of those watching the game turned it off before the end.  Are Sox fans quitters?

In their defense, the probability of a comeback was miniscule.  The best estimate I’ve uncovered comes from the Win Expectancy Finder, which compiles data from 1977 to 2006.  A home team down by such a margin in the seventh inning won no more than 1.8% of such games.

So why did so many fans (53%) keep watching?  If we assume that seeing the Sox lose gives fans no pleasure (“no joy in Mudville”), we can calculate how much pleasure not watching the game would bring the median Sox fan.  Not watching was just a tiny bit better than seeing a loss.  In other words, seeing the Sox come back from that far down gave the median fan about 56 times the enjoyment of the next best use of time.  The thrill of victory indeed (even without a championship)!

Comments are welcome.  I cannot help but reflect that, having written about missing shots on goal in soccer and the viewership for losers in baseball, Fred may be suffering from some strange illness or homesickness that precludes him from focusing on winners.  Fred, remember that the Crimson Tide is 10-0!