Monday, January 20, 2014

Recognizing Race on Martin Luther King Day

Over at Constitutional Law Prof Blog, Ruthann Robson has an interesting post about the way judges quote Martin Luther King, Jr.  The claim -- relying on a fascinating article by Jeremiah Goulka -- is that when judges quote MLK, they are usually doing so in the course of reaching a result that MLK would not support.

This discussion brought to mind a topic that I've discussed during my previous visit to Prawfs.  In my article Racial Capitalism, which came out last June, I defined racial capitalism as the process of deriving value from racial identity.  My article focused, in particular, on white people and predominantly white institutions deriving value from non-white racial identity.  An easy example is a school that photoshops a black student into its admissions brochure, or -- as a less extreme measure -- overrepresents the percentage of non-white students in its promotional materials.

In the article, I identify a judicial variant of racial capitalism, influenced by Justin Driver's work Recognizing Race.  (In Racial Capitalism, I discuss this on pages 2197-98.)  In a nutshell, Driver's work uncovers substantial variation in the circumstances when courts do and don't choose to explicitly identify the race of people discussed in their opinion.  In Ricci v. DeStefano, for example, the Supreme Court held that the New Haven fire department's decision to ignore standardized test results that disparately affected racial minorities violated Title VII.  Justice Kennedy's majority opinion discussed the testimony of three experts on standardized testing, yet only identified the race of one of the three -- the one whose testimony best supported the majority's result -- by stating that he "is black."  This is particularly striking because one of the other experts was also black, and yet the majority did not identify her by race.  As Professor Driver trenchantly explains:  "This identification is striking because, in a decision that cautions against the dangers of racially disparate treatment, it treats Lewis disparately by race."

Judges identify -- or ignore -- racial signifiers all the time, in ways that subtly buttress the result they reach.  In Whren v. United States, for example, the Court held stopping a motorist did not violate the Fourth Amendment so long as the officer had probable cause to believe that the the motorist violated traffic laws, even if an objectively reasonable officer would not have stopped the motorist in that situation.  The holding also meant that it didn't matter whether the traffic stop was pretextual so long as there was probable cause to believe that a traffic violation of some sort had occurred.  In the opinion, Justice Scalia identified the officer who arrested Whren as "Officer Ephraim Soto" and referred to him by name three times within the first two pages of the opinion.  While I have not been able to discover Officer Soto's racial or ethnic identity -- or, perhaps more importantly, how others would have perceived his race or ethinicity -- it appears relatively uncontroversial that Soto is a Spanish surname.  By emphasizing Officer Soto's surname, then, Justice Scalia implies that Soto might also be non-white, thereby distancing the events in Whren from the common pattern of white officers harassing black motorists that provoked outcry from civil rights advocates.

Of course, none of this is limited to judges.  More generally, it's quite common for white people and predominantly white institutions using the words of deceased black leaders to gain legitimacy and shield themselves against claims of racism.  Just today, Sarah Palin posted the following message on her Facebook page:

"Happy MLK, Jr. Day!

"I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character." – Martin Luther King, Jr.

Mr. President, in honor of Martin Luther King, Jr. and all who commit to ending any racial divide, no more playing the race card."

Although of course I can't be sure, my guess is that MLK probably would not want his words used by Sarah Palin to chastise our nation's first black president for "playing the race card" (whatever Palin means by that).

Of course, Palin is far from alone.  Some conservatives have recently dubbed themselves "Frederick Douglass Republicans."  As one forthrightly explained, if you invoke the name of a well-respected black family member like Frederick Douglass, "you can trump the race card."

These various examples are unified by the theme of white people and institutions invoking race -- whether that of a famous black person such as MLK, or that of a participant in a legal drama -- as a way of achieving moral legitimacy and shielding whatever argument they happen to be making from charges of racism.  Whether this is effective is, of course, another story, although at least sometimes it appears to be.  (When I last checked, Palin's post had over 32,000 "likes.")  Whether sucessful or unsuccessful, however, this use of non-white identity by white people is worth evaluating critically.  As Goulka says in the conclusion to his piece, "on this MLK Day and every other day, whenever a court invokes Dr. King," -- and I think this extends to invoking non-white people more generally -- "make sure to judge it by the content of their characterization."

Posted by Nancy Leong on January 20, 2014 at 08:51 PM in Culture, Law and Politics | Permalink | Comments (18) | TrackBack

Friday, November 22, 2013

Making Law Sex Positive

It has been a good decade for sexual freedom. The Supreme Court issued opinions protecting the rights of gay individuals to engage in sexual relationships and striking down a ban on the federal recognition of same-sex marriages. Two gay teen characters were portrayed as having a positive sexual relationship (leading to a marriage proposal) on network television. Sexual practices formerly viewed as perverse, such as role playing and sado-masochism, seem almost provincial now that there is a copy of Fifty Shades of Grey on every great-aunt’s bookshelf.

But, in an op-ed published in the Washington Post this weekend, I argue that even among this legal and pop culture sexual revolution, much of our law remains curiously silent, squeamish, or disapproving on the topic of sexual pleasure itself. Indeed, several areas of the law rely on the counterintuitive assumption that sexual pleasure has negligible or negative value and that we sacrifice nothing of importance when we curtail it. This phenomenon extends even to legal realms that regulate behaviors central to the experience of sexual pleasure.

The assumption that sexual pleasure has negligible or negative value is simply unfounded, and unfounded assumptions create bad laws and policies. Legal regulation generally sacrifices our freedom to engage in certain activities because the activities result in harm or because regulation generates benefits. Devaluing sexual pleasure distorts this calculus. In truth, sexual pleasure is actually a very good thing, simply because it is pleasurable.

Truly progressive legal reform would recognize the inherent value of sexual pleasure. This would have significant implications for several areas of law, ranging from obscenity to rape law. The op-ed out this weekend is part of a larger project challenging the sex-negativity of law and envisioning how simply valuing sexual pleasure in itself would require us to rethink different areas of law.

Obscenity law, for example, relies on the assumption that offensive speech that is intended merely to arouse is entitled to less constitutional protection than any other type of offensive speech. The Miller test allows states to freely ban any material that depicts sexual activity “in a patently offensive way” and “appeals to the prurient interests.” The First Amendment only protects this material if it has some serious literary, artistic, political, or scientific value to redeem it. In contrast, states may not ban other types of offensive material unless they can show it is likely to cause some harm. If sexual pleasure in itself is valuable, then we can’t justify banning offensive prurient material more freely simply because its primary purpose is to arouse people. Instead, we have to think more carefully about how (and whether) states should be able to regulate any offensive materials.

Recognizing sexual pleasure would also require state courts and legislatures rethink the criminalization of sado-masochistic sexual activities (or “BDSM”). BDSM has become so prevalent in popular culture that it seems almost quaint. But even some consensual spanking can lead to an assault or battery charge in most states. In contrast, the law permits violent sports, cosmetic surgery, tattooing, and skin piercing, in large part because courts and legislatures accept their value. We can’t justify this distinction if we acknowledge that sexual pleasure has as much value as the pleasure derived from a boxing match or cheek implants.

Recognizing the value of sexual pleasure doesn’t mean we have to value it above everything else. We regulate the things that bring people pleasure all the time. We value the pleasure we experience from music, but I may not kidnap Beyoncé and force her to join me on a song-filled road trip, no matter how magical the experience would be for me. Sexual pleasure is no different—we can acknowledge it is important and still regulate it.

But valuing sexual pleasure does require us to regulate more honestly. It allows a more complete and well-reasoned discussion of what we choose to regulate, what we fail to regulate, and our justifications for those choices.

The op-ed “The Joyless Law of Sex,” is available here. “Sex-Positive Law” will appear in the 87th volume for the NYU Law Review in April.

Posted by Margo Kaplan on November 22, 2013 at 05:12 PM in Criminal Law, Culture, First Amendment, Legal Theory | Permalink | Comments (14) | TrackBack

Wednesday, September 11, 2013

"Better Call Saul"

I am sure it will get so much law wrong, but I am totally in the bag for Better Call Saul, a planned prequal to Breaking Bad that focuses on the show's hilariously sleazy criminal-defense/PI attorney.

Posted by Howard Wasserman on September 11, 2013 at 06:13 PM in Culture, Howard Wasserman | Permalink | Comments (0) | TrackBack

Tuesday, July 23, 2013

Could FACs induce retirement of government officials? A "Corruption" Work-around?

Btw, a couple weeks ago on FB (where all my random mental burps occur), I proposed a possible variation of our crowdfunded FAC model in the gov't context. Specifically, I wondered aloud: could a cabal of Soros and Gates and Bloomberg create a FAC (Fan Action Committee) to throw money at Justice Ginsburg (or her favorite charity) to retire from SCOTUS (so POTUS could appoint someone new presumably) without violating any laws?

We just saw Sec. J. Napolitano step down from DHS to head the UC system. So if Soros et al. couldn't offer RBG 20 million to retire, could he give her 20 million to join as a board member of Open Society to have tea with him once a year? There you at least have a peppercorn of consideration for the contract. Is that enough to circumvent the corruption statutes or relevant ethics rules? Would you give the same deal to get Michelle Bachman to leave Congress? The interesting wrinkle here is that unlike general corruption statutes governing improper quid pro quo of "official action" for $, this FAC-y scenario just requires $ in exchange for no "official action", ie, retirement. A couple friends thought scenarios of this sort would still be illegal, but I'm not sure I'm persuaded yet; if it's illegal at the federal level under extant law, could it be used at the state level? If you disagree with me, please cite chapter and verse on why! And file this in the "devilish and probably misguided idea" drawer.

Posted by Dan Markel on July 23, 2013 at 06:23 PM in Article Spotlight, Constitutional thoughts, Criminal Law, Culture, Current Affairs, Dan Markel | Permalink | Comments (1) | TrackBack

Tuesday, July 16, 2013

A Not Quite Post-Script on Zimmerman, etc.

Interesting exchange I though I'd share.  I just rec'd an email from a stranger (to me):

Prof Markel,
You write here -  - that "I fear that if the races had been turned around, we might have a different verdict."

Why, given the evidence presented, the law, the jury instructions, etc., do you have this fear? Is there a scintilla of evidence that the jury, in its deliberations, was influenced by considerations of race in any way?

My answer:
Thanks for writing (respectfully!).
My sense is that there likely were some subtle racial dynamics as to what prompted GZ's suspicions. I doubt that if TM had been white, GZ would have bothered to call. If GZ had been black and shot a TM who were white, I could see the possibility of conviction going up, even if the same evidence were there. I regret that's the world in which I harbor that concern.

Still, in this case, I think it would be a serious injustice to alter the verdict just because of the risk that injustice elsewhere could erupt. My point, modestly, was that one can't fix other injustices by doing an injustice in this case.

My correspondent wrote back:

Thanks for your quick -- and equally respectful -- response.

1) Re: GZ being suspicious if TM had been white: This is a bedrock assumption -- I don't think there's much evidence on the issue one way or the other -- which I don't share, but let's assume it anyway.

2)  The jury seemed to be meticulous (14 hours of deliberation, etc.).  According to the juror interviewed on CNN, at first, 3 jurors wanted to convict GZ "of something."  But, based on the evidence presented and the "options we were given," acquittal was the only decision, in the end. I very much doubt that this jury would have acted any differently had TM been white/GZ been black.  Also bear in mind that white guilt, as well as white racism, can play a role.  But this is just my opinion.

At this point, it seems, we are in the realm of speculation and sociology, so I don't have much more to add than my first response. But I thought it was an interesting exchange, and I'm sure some of our readers would have more vigorous responses and reactions.

Update: I have since learned (h/t to Adler on FB and Bernstein below) that I may have been leaping to judgments re: my speculation about Zimmerman's reticence to call in suspicious non-blacks. He has a history of calling in a range of people, including fellow Hispanics, and he's also made calls, from what I understand, designed to ensure the wellbeing of young black children. I'm grateful for the information--obviously, I can't verify it myself, but if it's true, the information seems relevant about what kinds of speculations are warranted in race-switching scenarios.

Posted by Dan Markel on July 16, 2013 at 11:37 PM in Criminal Law, Culture, Current Affairs, Dan Markel | Permalink | Comments (17) | TrackBack

Sunday, June 30, 2013

Adoptive Couple v. Baby Girl (2 of 4): 3/256th Cherokee?

This case has been shadowed by concerns about Indian authenticity, equal protection, fatherhood and motherhood, dysfunctional child welfare systems, and “deserving” adoptive parents. The purpose of this series (part 1 is here), co-authored with Kim Pearson, a family law professor who writes about transracial adoption and non-normative families, is to clarify what the case did and didn’t do and to untangle the impact of some of these shadow concerns. While the Indian law analysis is largely mine and the family law analysis largely hers, the post is a product of our collective views. This post address race, tribal enrollment, and Indian authenticity.

Baby Veronica’s mother is “predominantly Hispanic” and her father has only a small fraction of Cherokee ancestry. Legally, his fraction of ancestry doesn’t matter; only his tribal enrollment does. But the very first sentence of Justice Alito’s opinion describes Veronica as “1.2% (3/256) Cherokee,” underscoring the anxiety about race that has pervaded the case. The father has only a distant Cherokee ancestor - isn’t he more white than Indian? Sure, he is enrolled in the tribe, but how can “one drop of blood . . . trigger[] all these extraordinary rights?” (asked Justice Roberts during the argument). Why should the child’s ties to her Cherokee heritage be privileged over her Hispanic heritage, especially if she is fractionally more Hispanic than Cherokee? It is these racial anxieties, rather than the law itself, that seem to drive the majority opinion as well as the media coverage of the case. As Will Baude points out, neither the majority nor the concurrence  has much in the way of express discussion of equal protection concerns. But the briefs, the oral arguments, and the references to fractional ancestry that peppered the majority opinion suggest these kinds of questions lurked just below the surface.

The short answer is that Indianness, especially in the form of formal enrollment in a tribe, is a political classification, not just a designation of race, heritage, or culture. I have written elsewhere about how to make sense of the “racial v. political” dichotomy that that seems to trouble many people about Indian law. In my view, it makes no sense to claim that Indianness has nothing at all to do with race and racism, but it is equally a mistake to suggest that the specter of race renders it less of a political status in the sense that the term is used to denote a particular legal history in which the federal government has treated Indian tribes as separate nations and has assumed unique powers to legislate with respect to tribes and indigenous people. (Bethany Berger and Sarah Krakoff have also written about this interplay.) Indian tribes have a different relationship with the federal government than any other group, a relationship based largely on treaties and recognition of nationhood. That is why Veronica’s Cherokee-ness matters in a way that her Hispanic-ness does not.

The term “Indian” has various definitions in different areas of federal law. In general, though, legal Indianness requires indigenous ancestry (descent from a group indigenous to what is now the United States) and some kind of political recognition. There are certainly areas of Indian law that spur debates about what qualifies as political recognition, but this is not one of them. As noted above, the definition of Indian here is clear, and it is clearly tied to tribal enrollment. Of all the possible indicia of Indianness, formal enrollment in a tribe is the most clearly “political” because it refers to national citizenship. Yet even enrollment-based distinctions raise concerns because most tribal enrollment rules require a demonstration of ancestry. Ancestry in tribal enrollment rules serves a different function than simply being “a proxy for race,” though. It is a nod to the kinship relations that form the basis of most tribes, and it is an indicator of indigeneity. As Justice Sotomayor points out in her dissent, the majority’s frequent references to the tribe’s reliance on descent and its “second-guess[ing]” of the tribe’s membership requirements are ironic in light of the fact that federal regulations require that all members demonstrate “descent from a historical Indian tribe” as a condition for tribal acknowledgement. 

But the anxiety runs even deeper. The Cherokee Nation is one of a handful of tribes that require only lineal descendancy to enroll. Many tribes require a certain degree of ancestry (called “blood quantum”), and some impose additional requirements (the most recent study of enrollment rules is here). Most often, tribes are criticized for this use of blood quantum in their enrollment criteria. The criticism is both external (by requiring that members possess a certain percentage of “Indian blood,” tribes are injecting race into their citizenship criteria) and internal (minimum blood quantum requirements are partly the product of federal influence and reflect a campaign to ensure that “real” Indians will eventually disappear). (For more about the history of blood quantum, I suggest starting with Paul Spruhan and J. Kehaulani Kauanui.) The Cherokee Nation does not require members to have any specific blood quantum; members must instead demonstrate descent from a person on the historical tribal rolls. Instead of being cheered for removing race from its enrollment criteria, however, it is chided for relying on nothing but race  - and only an “insignificant” fraction at that. (Similar concerns surrounded the use of ancestry in Rice v. Cayetano. Ironically, Justice Roberts argued that case for the state - the party relying on ancestry - yet he may be the current Justice most concerned with the use of ancestry in Indian law.)  

Tribes can’t win here. If they require a specific percentage of Indian blood, they are relying on race. If they require only descent, their members aren’t really Indians (see Alex Pearl’s recent post). If they do not require descent, they are no longer indigenous. At the oral argument, Justice Roberts was also concerned about the possibility that ICWA could apply based on only enrollment, but not ancestry. He asked about a “hypothetical tribe” with a “zero percent blood quantum” that is “open for, you know, people who want to apply, who think culturally they’re a Cherokee or - and number of fundamentally accepted conversions.” And if you are paying close attention, you know that the Cherokee Nation is the same tribe being sued for removing freedmen from its rolls because - according to the tribe - they lack indigenous ancestry. (Of course, it is far more complicated, but this isn’t a post about the Cherokee freedmen.) I chose the term “racial anxieties” carefully because that is exactly what plagues Indian law. The problem is that the Justices (and the public) don’t know how to think about race and Indian law. Is it too racial? Is it not racial at all? Is it not racial enough? And what is race anyway?

That the law itself remains intact is no small victory. The brief for the guardian ad litem in this case advocated a reinterpretation of ICWA that would demand some additional “non-biological” demonstration of Indianness (presumably besides tribal enrollment), arguing that the law is unconstitutional otherwise (see here for a discussion of how this argument has surfaced in other ICWA cases). The attorney for the GAL, Paul Clement, recently attacked the constitutionality of Indian legislation in another area. Given Clement’s track record before the Court, tribes are rightly concerned that these lingering racial anxieties could damage tribal rights even more than they did here.

Posted by Addie Rolnick on June 30, 2013 at 03:17 AM in Constitutional thoughts, Culture, Current Affairs, Gender, Law and Politics, Things You Oughta Know if You Teach X | Permalink | Comments (4) | TrackBack

Saturday, June 29, 2013

Adoptive Couple v. Baby Girl (1 of 4): Why the Court’s ICWA Ruling Matters

I’ve been a quiet guest this month, but this post (part 1 in a 4-part series) has been germinating a long time. Indian country issues get very little press (academic or otherwise), but when the occasional case is more widely followed, it can surface misunderstandings about Indian law and history and deep-seated anxieties about how Indian rights mesh with other areas of law. During my last guest stint here, I addressed this phenomenon in posts about the widely-debated Santa Clara Pueblo v. Martinez case and the Supreme Court’s 2012 holding in Ramah Navajo Chapter v. Salazar. I’m particularly concerned with how these crossover cases make their way into law school classes and legal scholarship not typically focused on Indian law, and I hope professors who incorporate these cases will find some of my observations and links useful. 

 Adoptive Couple v. Baby Girl, a major Indian law decision that has been nearly buried among the responses to Shelby, Fisher and Windsor, is one of those cases. It is a case about the language, history, and intent of the Indian Child Welfare Act, but the statutory issues have been shadowed by concerns about Indian authenticity, equal protection, fatherhood and motherhood, dysfunctional child welfare systems, and “deserving” adoptive parents. The purpose of this series, co-authored with Kim Pearson, a family law professor who writes about transracial adoption and non-normative families, is to clarify what the case did and didn’t do and to untangle the impact of some of these shadow concerns. While the Indian law analysis is largely mine and the family law analysis largely hers, the posts are a product of our collective views. Here, we address the holding and its immediate significance. In later posts, we will address the lurking issues.

What Exactly Is the Indian Child Welfare Act?

The Indian Child Welfare Act is a federal law that sets particular procedural rules that must be followed before parental rights can be terminated over a child who qualifies as “Indian.” The law was passed in 1978 to counter generations of forced removal of Indian children from their homes and communities, first via federally-sponsored assimilationist boarding schools and later via state child welfare systems, which removed Indian children from their homes at alarmingly high rates and placed them with white families, which were perceived to be better than their home communities. (This history is described in detail in an Indian law professor amicus brief filed by Stuart Banner and Angela Riley at UCLA.) The law does many things, but most important in this case are the procedures that state courts must follow if an Indian child (defined as as one who is “a member of an Indian tribe” or “is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe”) comes before them in a foster care, parental termination, or adoption proceeding. These include notifying the parent and the child’s tribe, giving the tribe the opportunity to intervene or to assume jurisdiction over the case, setting a high evidentiary and procedural bar before parental rights can be terminated, and, in the event of removal, placing the child with a relative, a family from the same tribe, or another Indian family if at all possible. 

In the only other ICWA case it has ever heard, the Court recognized that the law is primarily concerned with connecting tribes and children by strengthening tribal governments’ control over the placement of their children and by recognizing that the “best interests” of Indian children include maintenance of their tribal ties. (On the issue of what is “best” for adoptee children, read the amicus brief filed by pre-ICWA adoptees. The common complaint that the child’s best interests are “overridden” by the tribe or by federal law misses this aspect of ICWA; it recognizes that protecting the relationship between tribe and child is in line with, not antithetical to, the best interests analysis). That case, Mississippi Band of Choctaw Indians v. Holyfield, also involved a voluntary adoption in which the birth parents intentionally left the reservation in order to have their children adopted through state court to a white couple. The Court held that the statute required that the tribe have jurisdiction over the case, effectively refusing to allow individual Indian parents to circumvent the larger purposes of the law. Justice Scalia was in the majority in Holyfield, and he later described the decision to “turn that child over to the tribal council” as “very hard” but clearly mandated by the law. Justice Scalia’s characterization makes it sound as if the children were cruelly ripped from their adoptive home and returned to an opaque pit of corruption. What most people don’t know is that the Mississippi Choctaw tribe, after accepting jurisdiction and considering the best interests of the Holyfield children, eventually placed them with the adoptive family the parents had chosen, but required the parents to maintain contact with the children’s extended family and tribal culture. One lesson of that case, then, is that following federal law and respecting tribal jurisdiction doesn’t mean children won’t be properly placed in loving homes.  

The Facts

Baby Veronica, as she is known, is the child of a non-Indian mother and a Cherokee father, Dusten Brown. (Indian Country Today has a nice 4-part series on the family involved in the case. The first article is here and the last article, with links to the earlier ones, is here.) Her mother placed her up for adoption through a private agency and chose the Capiobiancos, a white couple with professional careers and advanced degrees, who have been referred to in most of the media coverage as “ideal” parents. As the court noted in the first footnote of its opinion, there was never any question that Veronica was an “Indian child” involved in a “child custody proceeding”  - exactly the situation that would normally trigger ICWA’s requirements. The mother knew Brown was Cherokee, but she and/or her attorneys made several misstatements along the way (requesting information about enrollment using the wrong name and date of birth for Brown, listing the baby’s ethnicity as Hispanic on interstate transfer forms), and so the tribe was not involved. But the petitioners argued that because Brown failed to pay child support and did not have custody of Veronica, he had essentially abandoned her and therefore was no longer a “parent” under the law. With no Indian parent, they argued, there was no basis for applying ICWA.

This, of course, is precisely why ICWA matters: under state law in South Carolina, a father who has not actively parented (i.e., paid support, been actively involved in child’s life) has no right to object to an adoption, but ICWA superseded state laws to institute a uniform, more stringent standard in cases involving Indian children: parental rights cannot be terminated and Indian families cannot be broken up unless active efforts have been made to keep them intact and the parent has been deemed beyond a reasonable doubt to be unfit. (Voluntary relinquishment under ICWA requires a written order entered before a judge, which did not happen here.) Both the state family court and the supreme court denied the adoption, finding that ICWA’s standards for involuntary termination of parental rights (stricter than state law) had not been met. The question before the Court was whether ICWA should apply at all.

How the Court Narrowed ICWA

It is important to say here that the Court did not invalidate any part of the statute. It simply held that a non-custodial father cannot invoke ICWA’s protections. (Justice Thomas’ concurrence, on the other hand, inexplicably asserts that Congress has no power to supersede state law where Indian children are involved.) The majority (Alito, Roberts, Kennedy, Thomas and Breyer, whose concurrence is more limited) read the law as concerned primarily with involuntary termination proceedings in which state social workers come into Indian families and remove children. A non-custodial Indian father invoking the statute to counter the voluntary adoption initiated by a non-Indian mother seemed to the majority to be outside of the law’s scope. In the majority’s view, this case was not about “the breakup of the Indian family” because the only Indian parent was not actively parenting the child at the time. In other words, there was no Indian family to break up. The Court remanded the case to state court after holding that ICWA does not apply, but it did not order that Veronica be returned to the Capiobiancos. The state court must now decide, applying state law, where to place her

(The majority also held that ICWA’s placement preferences did not apply because no other prospective adoptive parent was put forward by the tribe. This is disingenuous; no other placement was suggested because Brown’s extended family and the tribe supported Brown’s efforts to retain custody. The dissenting opinion points out - correctly, in my view - that the Court cannot rule on the placement question preference question before it has arisen, leaving room for the possibility that a relative could seek custody on remand. Justice Breyer, in his concurrence, suggested that Brown could be considered as a prospective adoptive placement if his rights were terminated.)

The blow struck by this case is significant. As the Court recognized in Holyfield, ICWA is about preserving the relationship between an Indian child and her tribe. The tribe has an interest in its children that may be separate from the interests of the Indian parents. The child’s interests are likewise served by maintaining a connection to her tribe and her extended family, even if she no longer has a relationship with her parents. In this case, the Cherokee Nation supported Dusten Brown’s effort to regain custody, but tribal intervention does not always (or even usually) mean returning the child to her Indian parent. By focusing so much on the father’s actions in the case, the Court has allowed tribal rights to be subsumed by an individual parent’s lack of responsibility. This is precisely the opposite of its holding in Holyfield, and it significantly undermines the spirit of the law.

For what it’s worth, I am a non-Indian mother of Indian children. Were we to consider giving our children up for adoption, or if they removed from our care, the ICWA’s procedures would come into play, possibly limiting our preferences about where we would want the children placed. I don’t consider ICWA’s recognition of a relationship between child and tribe to be an unfair burden or a barrier to pursuing my children’s best interests. As the Court recognized in Holyfield, but completely failed to acknowledge in Adoptive Couple, the two are closely linked. 


Posted by Addie Rolnick on June 29, 2013 at 03:12 AM in Constitutional thoughts, Culture, Current Affairs, Gender, Law and Politics, Things You Oughta Know if You Teach X | Permalink | Comments (2) | TrackBack

Thursday, June 13, 2013

Selling Made-To-Order Embryos and the Split on the Right

The New England Journal of Medicine will soon have in print an essay by Eli Adashi and I on the sale of "made-to-order" embryos. The article "Made-to-Order Embryos for Sale — A Brave New World?" has been online for a while already and concerns a recent development in the reproductive technology industry. As we put it:

The proliferation of commercial gamete sources (e.g., sperm and oocyte banks) has opened the door to a made-to-order embryo industry in which embryos are generated with a commercial transaction in mind. This prospect of a for-profit embryo bank is no longer theoretical. Indeed, as recently as November 2012, the Los Angeles Times reported on one such clinic that “sharply cuts costs by creating a single batch of embryos from one oocyte donor and one sperm donor, then divvying it up among several patients.” The report went on to state that “the clinic, not the customer, controls the embryos, typically making babies for three or four patients while paying just once for the donors and the laboratory work.”

Our essay reviews the legal regime that governs it (short answer, in most states it is not illegal or even regulated) and then considers the ethical premissibility of this practice. We examine objections to the practice premised on crowding out of embryo donors, the exploitation or undue inducement of donors, the corruption of reproduction (this is sometimes called "commodification" thought I think that term represents a broader set of arguments, so I  use "corruption" in my work to capture the value-denigrating objection specifically in its intrinsic or consequentialist form), and the furthering of eugenic objectives. Throughout the short essay our argumentative strategy is to press on whether this new practice is all that different from existing practices, epsecially the sale of sperm and egg which individuals can themselves put together to create embryos for reproductive use or to destroy in the generation of embryonic stem cells as well as the practice known as 'embryo adoption' or 'embryo donation.' The thing we think is newest here is actually issues related to lack of guidance on the parentage and ownership of embryos in the event of clinic bankruptcy, changes in minds by the donors, or dispositional conflicts (though John Robertson has suggested the law may be more certain than we posit).

The article is short, limited to 1500 words, so obviously we couldn't tackle everyhting. What has been most interesting to me has been a split of opinion on the article in the righter wings of the blogosphere.

The American Enterprise Institute published commentary on our article "'Walking the Ethical Edge: Made to Order Embryos Address Genuine Needs'" beginning with a view that we own our own bodies and pressing on justifications for prohibiting voluntary transactions, concludes our article "offer[s] a thoughtful guidance through the ethical thicket of embryo donation," and that "arping about or in some cases ignoring the failures of the current IVF system, seems the preferred choice for those opposed to even debating the benefits and challenges of a for-profit embryo market. Unless we as a society are determined to reserve the right of reproduction by infertile couples to the wealthy, we should welcome options."

By contrast, the National Review Online has an article "Made To Order Commodities Market" with a more negative reaction. The author claims we've engaged in "sophistry [that] has always been the anything goes in biotech crowd’s primary tool"and concluding ominously "Make no mistake: This means human cloning is coming closer, as selling embryos for use in IVF is just the front for selling cloned embryos for use in research." The author seems to agree with us for the most part that the distinction between existing practices and this new one is thin[fn1] , but would have us reverse those other practices. That is fair enough. We employ an argument from symmetry here and it can be resolved either way, and we don't actually take a position as to whether these technologies should all be permitted or all prohibited just that they are hard to distinguish (that said, anyone who knows my own work can suspect where I would come out, I can't speak for my coauthor on this!)

Both commentaries are interesting and worth reading. What is more interesting to me is the way in which debates on reproductive technology usage, much more so than abortion, really does cleave the right into two. The libertarian wing wants a strong justification for limiting reproductive choices like other choices about what to do with our bodies and likens the debate to that on organ sale. The more socially conservative wing sees this the beginning of slouching towards gommorah. On abortion this fissure is easier to solve, since the claim of fetal personhood allows more libertarian oriented thinkers to adopt Harm Principle type justifications of preventing harm to fetuses as persons . As I noted in blogging about personhood on my last visit, embryonic personhood claims may be harder to sustain, and thus the consensus more easily shattered.  I am part of a project looking at the intersection of abortion and reproductive technology advocacy and scholarship, so this room for schism is something I may write more about soon.

[fn1]: The author does suggests that sperm and egg sale are different because there is no "nascent human being." I think he means "person" not "human being" and I've blogged about why that distinction might matters in my last visit and also why one might support certain theories of when personhood begins over others. In any event the theory of personhood the author implictly champions would seem not to distinguish the existing possibility of preembryo destruction, indefinite freezing, stem cell derivation, etc.


Posted by Ivan Cohen on June 13, 2013 at 02:09 PM in Constitutional thoughts, Culture, Current Affairs, Gender, Law and Politics | Permalink | Comments (0) | TrackBack

Thursday, May 23, 2013

LSA Happy Hours and info on the CrimProf Shadow Conference.

Some announcements for folks attending Law and Society next week in Boston:

1) there's a crimprof happy hour on Thursday at 9pm at CityBar,

2) The general Prawfs and friends happy hour will be on Saturday from 9pm at the Sheraton SideBar.

Nunc est bibendum!

3) My co-organizer, Carissa Hessick, has, in her typical god-like ways, assembled the info for the Shadow CrimProf conference. This year's shadow conference will have a fantastic turnout.

Info appears after the jump (although not in exact chronological order).

2013 LSA Shadow Conference on Criminal Justice 


Criminal Justice 01:  Sentencing

Thurs. May 30, 10:15am-12noon

Christine Scott-Hayward – Shadow Sentencing

Carissa Hessick – Enforcing Procedural Rights at Sentencing

Dan Markel: Luck or Law: Is Indeterminate Sentencing Unconstitutional?

Lea Johnston -- Vulnerability as a Mitigating Factor: A Tool of Proportionality for Seriously Ill Offenders

Moderator/Discussant: Gerry Leonard


Criminal Justice 02:  Policing and Investigation

Thurs. May 30, 12:30pm-2:15pm

Lauryn Gouldin -- The Law of Investigative Detention

Amna Akbar -- The End of Community Policing?

Seth Stoughton – Policing the Constitution

Sandra Thompson -- Defining "Independence" in Forensic Science Labs

Moderator/Discussant: Carissa Hessick


Criminal Justice 03:  Crim Theory 

Sat. June 1, 2:30pm-4:15pm

Paul Litton – Is Psychological Research on Self-Control Relevant to Criminal Law?

Vincent Chiao -- Criminalization and Liberalism

Michael Rich -- Flipping the Murder Switch: Limits on the Perfect Preventive State

Youngjae Lee -- Moral Uncertainty and Reasonable Doubt

Moderator/Discussant: Michael Cahill


Criminal Justice 04:  Substantive Crimes and Defenses 

Fri. May 31, 2:30pm-4:15pm

Avlana Eisenberg -- Criminal Infliction of Emotional Distress

Jonathan Witmer-Rich -- The Heat of Passion Defense:  Tolerable Reasons to be Angry

Michal Buchhandler-Raphael -- Drugs, Dignity and Danger: Human Dignity as a Constitutional Constraint to Limit Overcriminalization

Steven Morrison -- The System of Modern Criminal Conspiracy

Moderator/Discussant: Eric Blumenson


Criminal Justice 05: Kids, Crime and Punishment

Thurs. May 30, 8:15am-10am

Arnold Loewy -- Juveniles and the Constitution

Mary Graw Leary -- The Role of Technology in Child Sex Trafficking

Deborah Ahrens -- Parenting Behind Bars

Elaine Chiu -- The Movement Against Male Circumcision

Moderator/Discussant: Richard McAdams


Criminal Justice 06: Punishment and the Constitution 

Fri. May 31, 10:15am-12noon

Will Berry -- When Dangerousness is Different

Meghan Ryan -- Juries and the Criminal Constitution

Beth Colgan -- Reinvigorating the Excessive Fines Clause

Todd Haugh – The Critical Mess Theory of Federal Sentencing

Moderator:  Rick Bierschbach 


Criminal Justice 07: Criminal Justice, Discretion, and Policy Challenges

Thurs. May 30, 2:30pm-4:15pm

Babe Howell: Prosecutorial Discretion and the Duty to Do Justice in an Overburdened Criminal Justice System

Jennifer Laurin: Discretion, Pretrial Procedure, and Forensic Science

Cecilia Klingele: Revocation and Law Reform

Ion Meyn: Discovery and Darkness


Criminal Justice 08: Frontiers of Criminal Justice

Thurs. May 30, 4:30pm-6:15pm

Audrey Rogers: Cyber bullying and Suicide

Alex Kreit: Drug Truce

Michael Mannheimer: The Contingent 4th Amendment

Kenworthy Bilz: Punishment and social standing of victims and offenders

Don Braman: Up Against the Wall, Democracy and Policing in Urban America


Criminal Justice 09:  4th Amendment 

Fri. May 31, 4:30pm-6:15pm

Shima Baradaran: Reconsidering Fourth Amendment Balancing

Caren Myers Morrison -- The Drone Wars: Will Technology Outstrip the 4th Amendment?

Laurent Sacharoff -- Constitutional Trespass

David Gray -- A Technology-Centered Approach to Quantitative Privacy (co-author Danielle Citron)

Tigran Eldred -- Tunnel Vision on Trial: A Review Essay on "A Wilderness of Error" by Errol Morris

Moderator/Discussant: Andrew Taslitz


Criminal Justice 10:  Socio-Legal Panels on Defense Counsel & Prosecutors 

Fri. May 31, 8:15am-10am

Ron Wright – Prosecutor Experience and the Culture of Self-Restraint (co-author K. Levine)

Jenia Iontcheva Turner – Effective Remedies for Ineffective Assistance of Counsel: A New Look After Lafler v. Cooper Cynthia Alkon -- Does your lawyer make a difference?  Plea bargaining drug cases for indigent defendants (co-author J. Marshall)

Nirej Sekhon --- Prosecutors and politics

Moderator/Discussant: Don Dripps 


 Criminal Justice 11: Roundtable on Criminal Justice in 2020 book

Fri. May 31, 4:30pm-6:15pm

Song Richardson (Chair)

John Parry

Janice Nadler

Jack Chin

Juliet Stumpf



Criminal Justice 12: Juries 

Sat. June 1, 8:15am-10am

Anna Roberts – Casual Ostracism: Jury Exclusion on the Basis of Criminal Convictions

Giovanna Shay -- In Open Court

Jenny Carroll – A Jury for All of Us                                           

Catherine Grosso -- Information Seeking in Voir Dire: Could Modifying Juror Questioning Reduce Jury Selection Racial Disparities? (Co-Author Barbara O'Brien)

Moderator/Discussant: Luis Chiesa 


Criminal Justice 13:  Difference, Crime, and Punishment 

Fri. May 31, 12:30pm-2:15pm

Kim Bailey -- Watching Me: The War on Crime and Its Effects on Individual Privacy

Francine Banner -- "You Have No Leave to Sing”: First Amendment Remedies for Retaliation in Reporting Military Sexual Assault and Harassment

Barbara O'Brien -- Discrimination and the Death Penalty:  Empirical Findings, Limitations, and Directions for Future Research (co-Author Catherine Grosso)

Kay Levine --- Romance, Education or Abuse? Media Narratives about Female on Male Statutory Rape (co-authors Emily Danker-Feldman, Brenda Smith, and Andrea Smith)

Moderator/Discussant: Frank Cooper 


Criminal Justice 14 and CRN Feminist Legal Theory group:  Vulnerability and Criminal Law

Fri. May 31, 8:15am-10am

Mary Anne Franks -- The Vulnerability Tax

Cynthia Godsoe -- Punishing to Protect

Aya Gruber -- Discriminatory Leniency in Criminal Law

Katie Oliviero -- Vulnerability’s Ambivalent Political Life: Precariousness and Law in Social Justice Organizing

Moderator/Discussant: Cyra Choudhury


Criminal Justice 15:  Adjudication

Thurs. May 30, 12:30pm-2:15pm

Darryl Brown – Free Market Ideology in the Law of Bargaining and Trials

Brian Gallini -- Bringing Down a Legend:  How Pennsylvania’s Investigating Grand Jury Ended Joe Paterno’s Career

Greg Gilchrist – Trial Bargaining

Melissa Hamilton – Sentencing: Politics or Empiricism

Moderator/Discussant: Brooks Holland


Criminal Justice 16: Roundtable on Future of Gideon at 50

Sunday June 2, 8:15am-10am

Darryl Brown (Chair)

Don Dripps

Josh Bowers

Erica Hashimoto

Jenny Roberts




Posted by Dan Markel on May 23, 2013 at 01:06 PM in Criminal Law, Culture | Permalink | Comments (3) | TrackBack

Tuesday, May 21, 2013

Sperm Donation, Anonymity, and Compensation: An Empirical Legal Study

In the United States, most sperm donations* are anonymous. By contrast, many developed nations require sperm donors to be identified, typically requiring new sperm (and egg) donors to put identifying information into a registry that is made available to a donor-conceived child once they reach the age of 18. Recently, advocates have pressed U.S. states to adopt these registries as well, and state legislatures have indicated openness to the idea.

In a series of prior papers I have explained why I believe the arguments offered by advocates of these registries fail. Nevertheless, I like to think of myself as somewhat open-minded, so in another set of projects I have undertaken to empirically test what might happen if the U.S. adopted such a system. In particular, I wanted to look at the intersection of anonymity and compensation, something that cannot be done in many of these other countries where compensation for sperm and egg donors is prohibited.

Today I posted online (downloadable here) the first published paper from this project,Can You Buy Sperm Donor Identification? An Experiment, co-authored with Travis Coan, and forthcoming in December 2013 in Vol. 10, Issue 4, of the Journal of Empirical Legal Studies.

This study relies on a self-selected convenience sample to experimentally examine the economic implications of adopting a mandatory sperm donor identification regime in the U.S. Our results support the hypothesis that subjects in the treatment (non-anonymity) condition need to be paid significantly more, on average, to donate their sperm. When restricting our attention to only those subjects that would ever actually consider donating sperm, we find that individuals in the control condition are willing-to-accept an average of $$43 to donate, while individuals in the treatment group are willing-to-accept an aver-age of $74. These estimates suggest that it would cost roughly $31 per sperm donation, at least in our sample, to require donors to be identified. This price differential roughly corresponds to that of a major U.S. sperm bank that operates both an anonymous and identify release programs in terms of what they pay donors.

We are currently running a companion study on actual U.S. sperm donors and hope soon to expand our research to egg donors, so comments and ideas are very welcome online or offline.

* I will follow the common parlance of using the term "donation" here, while recognizing that the fact that compensation is offered in most cases gives a good reason to think the term is a misnomer.

- I. Glenn Cohen


Posted by Ivan Cohen on May 21, 2013 at 01:53 PM in Article Spotlight, Culture, Current Affairs, Peer-Reviewed Journals, Science | Permalink | Comments (5) | TrackBack

Thursday, May 02, 2013

Great to be back and greetings from Washington!

It's great to be back at Prawfs for another guest-blogging stint.   I'm looking forward to spending the month talking a bit about some of my favorite topics such as co-religionist commerce, religious arbitration, and non-state law.  

My growing interest in non-state law largely traces to my sense that ASIL Pic Flier conversations in both international law, transnational law, and religious law share much in common (e.g. discussions of what is law, can there be law without enforcement, how should the state treat competing legal norms etc.).  To further this interest, I'm running a symposium in Washington, D.C. today sponsored by Pepperdine Law School and the American Society for International Law titled "The Rise of Non-State Law."  The symposium is part of a series run by ASIL's International Legal Theory Interest Group and the papers from today's symposium will eventually become part of a volume published by Cambridge University Press.  

I must say the papers submitted (and being presented) by the participants are truly fantastic and have led today to some great conversation and debate.  For those who share the interest, here's the full schedule for the day:

Symposium Schedule

8:30 a.m. Breakfast (Tillar House)

8:45 Introduction (Michael Helfand (Pepperdine), John Linarelli (Swansea))

9:00 Panel 1—Global Legal Pluralism: Trends and Challenges

10:45 Coffee

11:00  Panel 2—Non-State Law and Non-State Institutions

1:00 p.m. Lunch

2:00 Panel 3—The Role of Religion and Culture in Non-State Law

3:45 Coffee

4:00 Open Forum

5:00 Closing Comments

Posted by Michael Helfand on May 2, 2013 at 12:11 PM in Culture, International Law, Legal Theory, Religion | Permalink | Comments (0) | TrackBack

Monday, April 29, 2013

Why I Decided to Construct a Free Online Casebook Available to Anyone for Civ Pro Using the H20 Platform

One of the nice things about tenure is that it frees you up to to do things you know are good for the world but may not be adequately valued in the tenure process. This summer I will embark on one such project, building a free online casebook for Civ Pro. I will be using the Harvard Berkman Center H20 "hack the casebook" platform. This great platform allows you to create "playlists" of cases and other materials that can be "remixed" by others, added to, etc. The initial goal of the project is to create a completely free H20 platform casebook for each of the firsy year classes, and I have stepped up to do Civ Pro.

Let me tell you a little bit about why I chose to do this because it may encourage others to join this great project or ones like it.

First, like others, I am shocked at how expensive textbooks have become for doctrinal 1L course. I realized that together my casebook and supplement (including the FRCP, major statutesm, etc) would cost my students $243 a piece and thus providing them with free materials would save at least $19,000 among my own students for next year. When multiplied over several years, as well as the possibility that other faculty would adopt this textbook and save their students money, this just seemed like a value creating proposition.In a time when students across the U.S. are struggling with the high price of legal education, I felt I should do what I could here.

Second, most of the materials I teach in my Civ Pro class are major Supreme Court cases (with a few Circuit and state court cases) that could be easily found and edited in public domain format, which the H20 platform makes easy. Just because of the way I teach my own course and the textbook I was using, I was already not assigning many of the notes that followed the cases and I was supplementing the book with additional materials (some written up by myself) so that the value the casebook was offering to my course that could not be found in the public domain was lessened. To be sure, I will still have to replace introductory sections of various parts of the book with my own write-ups as well as do editing of all the versions of the cases I will still use -- no small amount of effort -- but I might have felt differently about undertaking this if my casebook was doing more original work for me in the way I taught my course.

Third (and here I am purposefully not being specific and naming the casebook in question because, for all I know, all Casebooks in the field are similar in this regard): my casebook is more than 1200 pages long. I estimate that I use only about 300-450 of those pages in a 4 credit introductory course. It does have a compact addition for shorter courses, but unfortunately what it chooses to keep versus discard is not a good fit for what I use from the book. Before I decided to do the H20 version myself, I called the publisher of my casebook to see if I could "buy by the page" for the pages I actually use, a practice that some textbooks allow you to do. I was told I could not. Given that they have gone to the trouble of creating a "condensed" version I do not blame the authors/publishers, but this was the last straw for me in deciding to go it on my own.

This summer, along with my RAs, will be spent doing a beta version of the free H20 Casebook for Civ Pro that I will test out with my incoming 1Ls in the fall. I am incredibly grateful to Harvard Law School for allowing me to use my time (and RA time) for this project whose value will hopefully be externalized. I am particularly grateful to my dean, Martha Minow, since she is herself the co-author of a Civ Pro textbook (not the one I had been using), so she is basically authorizing the law school to fund a project that may cut into her own sales. She's just that kind of classy person! The beta version will be kept internal to my students for the fall, but if all goes well I hope to share it with the world in 2014 and perhaps others will want to adopt it.

- I. Glenn Cohen


Posted by Ivan Cohen on April 29, 2013 at 10:26 AM in Civil Procedure, Culture, Web/Tech | Permalink | Comments (6) | TrackBack

Tuesday, April 23, 2013

Some Must Reads from the Mich LR Books Issue

I spent a decent bit of time with the recent books issue of the Michigan Law Review. Whenever I read review essays of books, I watch for the degree to which the author performs the script identified and lampooned by David Schleicher. The latest issue of the MLR has no shortage of review essays in which the upshot by the reviewer is: this book would be better and its problems would be cured if it were more interested in the things that I also am interested in and had cited and addressed my work more. 

Still, I'm delighted to say that in the area of criminal justice, there are 2 pieces that are absolutely vital for every prof in that area to read.

The first is Steve Schulhofer's polite but fearless and fierce critique of Bill Stuntz's book, The Collapse of American Criminal Justice. As some of you know, this book, and more generally, its late author, have received a cascade of encomia from distinguished and usually shrewd reviewers. The circle of love around Stuntz is understandable and obviously warranted. He was a gem of a human being and a superb colleague. I had Stuntz as a teacher when he arrived at Harvard, and ever since, was grateful for his generosity of spirit and example as a teacher and scholar. But as Nietzsche said, one repays a teacher badly by always remaining a pupil.

And so, on the merits of the work, I have long been a skeptic, though as someone who doesn't specialize in criminal procedure as such, I had refrained from investing the necessary time to ground the skepticism and make it intellectually tidy. Thanks to Steve Schulhofer's piece, however, that task is now substantially underway. With some luck it will do the work of bringing a generation of criminal procedure scholars back on course.  For notwithstanding the many deservedly kind things that could be said about Stuntz, my fear is that his seductive writing and bold and innovative claims took too many people off course from truth and justice. Schulhofer's review, which I'm sure was enormously difficult to write, will provide adequate grounds for others to revisit and soberly re-assess the significance of the Stuntzian corpus of scholarship.

Elsewhere in the issue is John Pfaff's review of Ernest Drucker's book on the epidemiology of mass incarceration. John is guesting here at Prawfs over the next while and so I won't steal his thunder and say too much of his review essay other than it artfully and carefully outlines the empirical basis to wholly undermine much of the conventional wisdom found among lots of criminal law academics and some of the prominent journalists who have been clobbered by their Zombie memes.  

In short, if you're at all interested in being better informed about the American criminal justice system and the pathologies of its scholarship, read Steve and John's pieces. 

Finally, I can't forbear from also highlighting our own Paul Horwitz's contribution to that MLR issue. Paul's critique of Tamanaha and Olson's books on legal education is typically Horwitzian: fair-minded, pointed, and subtle (and thus, Canadian?).  Enjoy!

Posted by Dan Markel on April 23, 2013 at 12:26 PM in Article Spotlight, Criminal Law, Culture, Current Affairs, Dan Markel | Permalink | Comments (1) | TrackBack

Thursday, April 04, 2013

Roger Ebert

Roger Ebert has died.  I was a big fan.  I wrote a brief post about his writing in 2008.  He will be sorely missed.

Posted by Matt Bodie on April 4, 2013 at 04:22 PM in Culture | Permalink | Comments (1) | TrackBack

Wednesday, January 23, 2013

Random pop culture moment

We watched "The Wizard of Oz" over the weekend--first time our daughter had seen it. Now I can't get Dark Side of the Moon out of my head.

Posted by Howard Wasserman on January 23, 2013 at 07:23 PM in Culture, Howard Wasserman | Permalink | Comments (0) | TrackBack

Monday, December 17, 2012

Build a better mousetrap . . .

How is it that in the approximately 2200 years since the Maccabee Rebellion, no one has invented a good doohickey for getting remnant wax out of a Chanukah Menorah? And what should such a thingamabob be called?

Posted by Howard Wasserman on December 17, 2012 at 07:34 AM in Culture, Howard Wasserman | Permalink | Comments (9) | TrackBack

Wednesday, December 12, 2012

Breaking Bad, Wire-Style

I've written before that "The Wire" had the best opening title sequence/theme song in TV history. I also am a big fan of  "Breaking Bad," although its title sequence is not quite as memorable (although I still like it, especially in its use of Periodic Table boxes--for Bromine and Boron Barium--for the first letters in the title). Fortunately, someone decided to show what would happen if the latter used the former's title sequence.


Posted by Howard Wasserman on December 12, 2012 at 10:44 PM in Culture, Howard Wasserman | Permalink | Comments (2) | TrackBack

Tuesday, November 20, 2012

Whither Elmo?

My daughter is well past Sesame Street age, although she spent a year (from 20 months to 32 months) carrying a stuffed Elmo everywhere. But given the news that the man who created Elmo, Kevin Clash, has resigned from the show in the wake of two separate allegations of child sexual abuse, a question:

Can Elmo survive as a character? Sesame Street producers insist he can, that other puppeteers are trained to do the character and that "Elmo is bigger than any one person." But can parents separate Elmo the character from the person who played him, given how much attention Clash himself has received? And there are two aspects to this question. First, will parents allow their kids to like, watch, and play with Elmo? Second, what do the show and parents do with the fact that most of the 2013-14 season (the show's 44th) has been taped, meaning Clash will be playing Elmo well into 2014?

Posted by Howard Wasserman on November 20, 2012 at 08:37 PM in Culture, Current Affairs, Howard Wasserman | Permalink | Comments (1) | TrackBack

Sunday, November 11, 2012

Catalyzing Sports Fans (and the Rest of Us)--early draft now available

I'm happy to say that my co-authors Howard Wasserman, Michael McCann, and I have a short shitty first draft to read -- Catalyzing Sports Fans (and the Rest of Us) -- if anyone's interested. The paper is *not* about retributive justice in any dimension. It's about sports, free speech, contracts, taxes, crowds, opera, charity, and jurisdictional competition, etc. In short, it's about nothing I know anything about. So I hope you'll see fit to set me straight. Let me know via email if you'd like to read an early version please. I've pasted our working abstract below.

In most major professional sports, the desires of fans are of secondary significance. We think this could be different, and we offer two variations on a theme in which fans can be more influential stakeholders, particularly with respect to player trades or retention deals. We propose the development of Fan Action Committees (FACs). 

 Whether through enriching players directly, or through contributions to a player’s foundation or favorite charitable cause (our preferred approach), we examine the uneasy case for FACs. After anticipating objections and obstacles under current rules to their development, we offer some reflections about how the FAC model can transform, well, just about all other realms of human endeavor where third parties are benefited or harmed by agreements between two other parties. 


Posted by Dan Markel on November 11, 2012 at 04:55 PM in Article Spotlight, Culture, First Amendment, Sports | Permalink | Comments (0) | TrackBack

Friday, November 09, 2012

Making and Taking

David Brooks is not my favorite New York Times columnist, though he’s certainly not the worst (I’m looking at you, Gail).  And sometimes he says things that are both right and really important.  He said something like that today, when he advised Republicans to start thinking about ethnic groups (in my own experience, Latinos) in ways that transcend this foolish and disgusting makers-takers/"they want stuff" theme that is oozing into the post-election discussion.

What he points out is that many ethnic groups (again, I’m thinking personally about Latinos) have immense respect for hard work, but also immense appreciation for the good government can do.  Without spilling too much of my unabridged biography here I’ll just say that I have a lot of personal experience with people working exceptionally hard.  And valuing it.  My father used to tell me that his father, a barber, would say “If I don’t cut hair, we don’t eat.”  My father got that lesson.  My other grandfather started as a dishwasher in a hotel restaurant and eventually bought a Mexican restaurant: he used his wife and his daughter (my mother) as waitresses and cashiers, and he did all the cooking and purchasing himself.  The only outside person who did any work there was a bookkeeper he used at tax time. 

But a lot of whatever success we achieved as a family could not have happened without government programs.  I’ll start with the biggest program of them all: the military, which, while nearly killing my father more than once, nevertheless ended up providing us housing, discounted groceries, education (from first grade to, in the case of my father, vocational education), and yes, the biggest evil of all, government-run health care (which was excellent, by the way).  We also benefitted from food stamps, Pell Grants and guaranteed student loans, state universities, Medicare, and Medicaid.  I’m sure I’m leaving something out.

Anyway, enough detail.  As a matter of setting the record straight I’m glad David Brooks explained all this to the blowhards and self-righteous titans of white American industriousness who think that a vote for Obama was a vote for government cheese and a chance to sit around and keep sucking on the government teat.  Although personally I don’t really care if they get the message: if they keep talking like they talked this time around (and are still talking) at least I won’t have to spend two months every four years refreshing rather than, well, working.  Because I won’t have to worry about how the election will turn out.

Posted by Bill Araiza on November 9, 2012 at 11:02 AM in Culture, Current Affairs | Permalink | Comments (9) | TrackBack

Saturday, November 03, 2012

"The past is never dead. It's not even past."

Hello all and a tremendous thank you to Dan and the PrawfsBlawg crew for having me this month! I'm usually thinking about patent law, but today I've got a short note on other IP...

Last week, the estate of William Faulkner filed two lawsuits over quotes from Faulkner works – one against Sony for the movie, Midnight in Paris, featuring a misquote of the above quotation from Faulkner's novel, Requiem for a Nun, the other against the Washington Post and Northrop Grumman for an ad featuring a quote from a Harper’s piece on civil rights. The complaints can be found here and here. Both suits allege three causes of action: copyright infringement, trademark infringement and misappropriation for commercial advantage of Faulkner’s likeness and image. I’m guessing that the suits spark a little surprise and outrage in most folks, folks who feel like this shouldn’t be actionable copyright or trademark infringement because the use seems like a fair (and quite common) one. And I believe these mildly outraged folks would be right—both copyright and trademark fair use doctrines appear to protect this sort of use. We might give Faulkner his due on the misappropriation count, however—after all, the movie and ad are clearly commercial endeavors. Yet without delving too deeply into right of publicity torts, it seems reasonable that an incidental use in works of entertainment like a movie does not trigger liability. The ad may be a more difficult case because it’s not an entertaining work of fiction.

This is really interesting to Faulkner (and Woody Allen) fans. But an IP fan might have a couple more questions.

If everyone but the Faulkner estate thinks this case is a slam-dunk loser, why file it? And why pick these as your first suits ever in defending the estate’s intellectual property? One hypothesis: These suits are a shot across the bow to moviemakers, ad men and other creative types who want to quote (or misquote) Faulkner (a suggestion made by BU's BC's Dave Olson here) without getting the estate's permission. 

Another hypothesis: Assume the misappropriation claim with respect to the Northrop Grumman ad has a chance (however slim) of winning for the estate. Perhaps buttressing the state tort claim with two federal infringement claims frames the case as one of intellectual property rights and, in doing so, legitimizes and strengthens the state claim. Having a conversation about the quotes as protected expression or as protected marks (however weak those claims may be) may set up the misappropriation conversation more favorably for Faulkner than if it stood alone. The movie case (and others in the future) have to be filed to keep the momentum going—building a case for respect for their IP rights, whatever they may be.

As an aside, the estate appears recently to have licensed a quote to the television show, Modern Family. This is a question I usually ask my students. Should the fact that some people get and pay for permission inform our decision on whether those who do not seek permission and/or do not pay for similar uses are using fairly? For example, Weird Al usually gets permission for his songs even though they seem like fair uses after Campbell v. Acuff-Rose and when Lady Gaga would not grant permission, he created a parody of her song anyway, relying on fair use.

Looking forward to a great month here!

Posted by Amelia Rinehart on November 3, 2012 at 07:37 PM in Culture, Intellectual Property | Permalink | Comments (7) | TrackBack

Thursday, November 01, 2012

Mrs. Coach speaks

Still more on the dust-up over Mitt Romney using Clear Eyes, Full Hearts in his campaign and speeches: Actress Connie Britton (who played Tami Taylor, a/k/a Mrs. Coach) and Sarah Aubrey (an executive producer on the show) wrote an op-ed in USA Today criticizing Romney for using the slogan, insisting that the women of Dillon, Texas would not approve. The piece particularly focuses on issues of health care and women's rights--ACA, equal pay, the future viability of Planned Parenthood (they point out that the single mother of star running back "Smash" Williams worked there, a detail I did not know or remember).

Anyway, draw your own conclusions.

Posted by Howard Wasserman on November 1, 2012 at 10:31 AM in Culture, Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Thursday, October 25, 2012

More on electoral politics and "Friday Night Lights"

A follow-up to my post about Mitt Romney coopting "Clear Eyes, Full Hearts, Can't Lose" from Friday Night Lights and the objections of the show's producer:

Dan Hopkins (political science at Georgetown), writing at The Monkey Cage, applies a model to predict how the major characters would have voted in 2008. He concludes that pretty much everyone would have voted for McCain, including Mrs. Coach (not sure I agree with that one). He does not discuss Julie Taylor (Coachette, if you will), whose "get-me-out-of-this-small-town" attitude likely makes her a Democrat. Definitely worth a read.

Posted by Howard Wasserman on October 25, 2012 at 09:31 AM in Culture, Howard Wasserman, Law and Politics | Permalink | Comments (1) | TrackBack

Sunday, October 14, 2012

Clear eyes, full hearts, can't lose (the election)

A mini controversy has sprung up over Mitt Romney adopting the slogan "clear eyes, full hearts, can't lose" from the tv show Friday Night Lights as a campaign rally slogan. Peter Berg, the show's creator, wrote a letter to Romney telling him that his "politics and campaign are clearly not aligned with the themes we portrayed in our series" and asking him to "[p]lease come up with your own campaign slogan." No word, at this point, whether the campaign is going to acquiesce.

This is just the latest in a repeated story--GOP candidate uses some pop culture theme (song, show, slogan, character, etc.) and its creator complains and asks him to stop. And to the extent Berg is correct that Romney's politics are contrary to the show's message, that, too, is par for the course. Politicians (and others) have long been using Mellencamp's Pink Houses and Springsteen's Born in the U.S.A. as "rah-rah, America is great" songs, completely missing the songs' obvious theme that America has ignored and abandoned segments of society--the working class, Viet Nam vets, working-class Viet Nam vets.

Several media critics have argued that it is not clear whether the show's political message is consistent or aligned with the campaign's message, because the show's politics are not clear. The show, they suggest, was both liberal and conservative--"bi-partisan," as one critic writes. Slate's David Plotz argued last year that the show's politics are "communitarian;" it values the communities that we create of whatever form--families, friends, schools, small towns, teams, team boosters, churches, etc. It's an interesting insight, although I would counter that the central institutions depicted--the school, the football booster club, and the town that loved its team--all were corrupt and influenced by wealthy individuals with questionable motives and all screwed over Coach and Mrs. Coach at just about every turn. Anyway, the argument now seems to be that a show with political universality should not be coopted by one side or the other.

The question is whether it matters. Putting to one side any intellectual property issues and whether a political campaign can claim fair use of the song/slogan/show, what difference does it make whether the candidate's use of the song/slogan/character is consistent with its original or intended message? In fact, isn't the "fair use" argument stronger if the candidate can argue that he is giving new or altered meaning to the culture referent? Plus, whatever the message of FNL itself, the "clear eyes" slogan has little or nothing to do with any of that.

Posted by Howard Wasserman on October 14, 2012 at 09:36 AM in Culture, Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Friday, October 12, 2012

Negative Commercial Advertising

At this time of year, there are always complaints about politicians' negative ads.  I never bought into these complaints; it seemed to me that negative ads tended to be more useful than positive ones.  An ad claiming that a candidate was soft on crime or was in the pocket of big business was at least likely to convey some information about ideology.  An ad claiming that a candidate had good character, however, tended to be worthless to me because anyone can claim to have good personal qualities.

But whatever the merits of negative political ads, I am intrigued by the negative commercial ads that I have seen lately.  Take, for example, Samsung's ad that's critical of the iPhone.  One of the messages of the ad is that young people shouldn't want the iPhone -- simply because middle-aged people do want it.  Similarly, the "not for women" softdrink campaign and the Miller Lite "man up" ads appeal to men to buy the products strictly because women (or effeminate men) aren't supposed to like them.

This is different from products that are meant to appeal to certain groups.  Dove's Men + Care, for example, might appeal to men because it lacks the flowery perfume that marks some other soaps.  These newer products, by contrast, are being promoted strictly by denigrating other groups of potential purchasers.

Am I right in thinking that this represents a new development?  I don't recall ad campaigns exactly like these, though it might be simply a variation on the don't-trust-anyone-over-30 mantra from the 60s.  Does it say something about modern culture that commercial companies now think they can make more money with divisive ads than by appealing to all demographics?

Posted by Michael Dimino on October 12, 2012 at 09:28 PM in Culture | Permalink | Comments (0) | TrackBack

Thursday, October 11, 2012

Law on TV

It is not breaking new ground to say that television is fascinated by law and lawyers, even if the portrayal is never quite right. It does give us some exam or discussion ideas or at least something to blog about. To wit:

On Parenthood, the lawyer character got into trouble at work because she missed the deadline for submitting her responses to Request for Admissions (that phrase was repeated multiple times, probably because it sounds fancy--I don't think I mention Requests to Admit that many times in my entire semester-long class). As a result, the case was going to be dismissed, her client was going to be out millions of dollars, and the firm was going to be sued for malpractice. Opposing counsel declined to accept the late responses because doing so would hurt her client.

This seems really far-fetched to me. Courts don't dismiss cases for a single inadvertent discovery mistake; it would have taken a whole lot of prior discovery problems for the court to get to that point; would the court really have not forgiven a one-day delay (to the extent the court is even involved in discovery at that point).? I also would expect opposing counsel to agree to the after-the-fact extension, since there probably was no prejudice. The show obviously was trying to set-up work problems so the character can face a work-family balance crisis. And maybe discovery sounded fancier and more lawyerly than a problem (like failing to file a lawsuit on time) that might actually get a case dismissed.

And, hey, anytime you can make drama out of discovery, you have to go there, right?

More questions, with SPOILERS, after the jump.

I also am right in the middle of the most-recent episode of Elementary (Sherlock Holmes in New York), which does not feel that much different than any other CBS police procedural. Holmes suspects the neighbor of the murder victim of having stolen something from the victim's apartment, so he kicks in the door to reveal the stolen item; as he is doing this and the neighbor is screaming about him having to get a warrant, Holmes says "it's a good thing I'm not the police." That is just flat-out wrong; Holmes acts under color of state law under at least two (maybe three) tests. Can anyone come up with a conceivable argument that he doesn't?

Finally, here is the one I genuinely need help on, because I know nothing about wills. In that same episode, Sherlock discovers that the two murder victims both had been fathered by the philandering father of a prime suspect. The wealthy man had recently died, with a will leaving the estate to his marital daughters (the suspect and her twin sister). But, Sherlock says, the two victims are "pretermitted heirs" who would be able to come back and make a claim on the estate, thus giving the suspect motive to kill them.

This seems really, really wrong. If the father made out a will, assuming it is valid, he can disinherit or devise to anyone he wants, can't he? That there might be heirs entitled to a claim in the absence of a will does not mean they can make any sort of claim on an estate that has been probated pursuant to a valid will. In other words, they only would be entitled to millions of dollars (the basis for the motive) if they could show the willis invalid; they could not show entitlement to recover simply because they are descendants. Am I wrong about this? Am I missing something?


Posted by Howard Wasserman on October 11, 2012 at 01:12 PM in Culture, Howard Wasserman | Permalink | Comments (19) | TrackBack

Friday, September 21, 2012

The Simpsons "love" Mitt Romney

Take a quick look at this obviously fantastic election-related clip from "The Simpsons":

Romney's horse may have totally "choked in the Olympics," but at least Homer gets outsourced to China with "a steady job." Too bad "Stupid" Flanders is there next to him. Romney "has a house in your state" and the "government paid him taxes the last five years." But, it's ok. After all, Romney "did invent Obamacare." 

Homer didn't have an ID when he arrived to vote, so the Rich Texan (a Republican stooge in most episodes) wanted to stop him from voting, that is, until he learned that Homer was white, middle aged, relatively uneducated, and gets his news from TV screens at gas stations. The Rich Texan, though, gives us the best line: "Stopping all Americans from voting is for the protection of all Americans."

Governor Romney may think 47% of us are "takers" and dependent on the government and not worth caring about, but although all that is great fodder for politics and the media, the real tragedies of this election are those brazen attempts to suppress voter turnout in traditionally Democratic locations and among traditional Democratic constituencies. In Ohio, the Republican state leadership tried to end early voting in just the Democratic counties; in Indiana, the state is taking away voting locations in urban areas and adding them in rural ones. On the other hand, states like New York and California are allowing people to register to vote online and making it easier for people to find their voting centers and get to them.

Homer was lucky. Too many voters may not be.

Posted by Ari Ezra Waldman on September 21, 2012 at 11:22 AM in Culture, Current Affairs, Law and Politics | Permalink | Comments (0) | TrackBack

Thursday, September 20, 2012

Sorkin better in PSAs?

Fresh off my post decrying how bad Aaron Sorkin shows have become (or, in retrospect, always were), comes this story about using The West Wing to teach about democracy. Hillary Clinton told a story about the speaker of the lower house of Burma's parliament telling her that, in an effort to learn how to be a democratic body, they had taken to watching old segments of the show (Clinton did not agree that was the best way to do it).

Cast members also have taken to doing political PSAs and educational spots, in character and in full Sorkin Mode. The most recent one is for Bridget Mary McCormack, a law professor at Michigan (and the sister of a former castmember) who is running for the Michigan Supreme Court; the spot also tries to educate voters about the non-partisan sections of the ballots, including judicial elections. The earlier one is by Funny or Die and is a mock PSA (sorry, unable to embed) about the benefits of walking and looking for a way to inform people about the benefits of walking.

It's all prettty funny (especially in its self-awareness: "Hey, how about a TV show showing people walking?" "Nah") and quite enjoyable, at least in short bursts. Maybe politics are different.


Posted by Howard Wasserman on September 20, 2012 at 01:59 PM in Culture, Howard Wasserman | Permalink | Comments (1) | TrackBack

Thursday, September 06, 2012

Has Aaron Sorkin always been unwatchable?

I have always been an Aaron Sorkin fan. Like every law professor, I can recite A Few Good Men from memory; like every Democrat of a certain age, I loved The West Wing; and like not many people (since no one watched the show), I enjoyed Sports Night.

But we stopped watching The Newsroom after about three episodes. And it was not about his political leanings, which I largely share. And I like the idea of a press that actually does ask the tough questions in a sort of prosecutorial manner.

The problem is the stories and characters. The women were all written as totally incompetent personally or professionally or, usually, both (Sorkin has taken a lot of criticism for this). Just about every character seems thoroughly unlikeable as a human being, particularly the men who draw out the incompetence of the women. And the Sorkinesque speechifying, meant to be soaring, often comes across as bullying or humiliating. Sorkin paints a world in which it would be great if we all had the ability to call  someone out and cut them to the quick in an articulate way; but often, that just looks obnoxious. Plus, his characters are basically the same; you can link a character on The Newsroom to one on WW to one on SN.

The thing is, I'm not sure it is only this show. I recently went back to Season 1 of Sports Night and found it just as unwatchable for many of the same reasons. The characters were slightly better and more enjoyable, but the blatant sexism and retrograde sexual politics remained, as did the speechifying that just came across as obnoxious or unbelievable.

Am I wrong? Am I being too harsh? Trust me, I can handle the truth.

Posted by Howard Wasserman on September 6, 2012 at 03:17 PM in Culture, Howard Wasserman, Law and Politics | Permalink | Comments (11) | TrackBack

Thursday, August 30, 2012

PEGs: Performance Enhancing Gloves

Researchers at Stanford, led by two biologists, are close to having a commercially viable cooling glove, a device designed to cool core body temperature by cooling blood in particular veins in the palm that are devoted to temperature regulation. (H/T: My colleague Tracy Hresko Pearl).

The research team also discovered that the glove carries athletic benefits. Cooling the body also cools muscles. Muscle fatigue, it has been found, is a product of the temperature in the muscle getting too high (something to do with a chemical enzyme); by cooling the muscles, the glove essentially resets the state of muscle fatigue, allowing an athlete to start over. In a six-week period, one member of the team went from doing 180 pull-ups in a session to over 620; they found similar improvements in bench press, running, and cycling. And several teams--including the Raiders, Niners, Man United, and the Stanford football and track teams--have begun using it.

Given this level of improvement, one of the researchers said that the glove was "[e]qual to or substantially better than steroids … and it's not illegal." But should it be? And if not, returning to a question I asked when I first started blogging, why is the glove different from steroids or HGH or EPO or blood doping or other performance enhances that we have outlawed and decried? All use modern technology and modern scientific knowledge (the science behind cooling was not fully understood until 2009) to improve athletic performance. Athletes training with any of these have a technological advantage not available 10, 20, or 50 years ago.

The only apparent difference is the negative health consequences associated with steroids. But is that all there is? And in our new Libertarian Era, should that be enough?

Posted by Howard Wasserman on August 30, 2012 at 10:35 AM in Culture, Howard Wasserman, Sports | Permalink | Comments (4) | TrackBack

Sexist New Coke?

About a year ago, Bic unveiled Bic for Her, a pen designed for use by women in that it is smaller and, oh yeah, pink and crystal and other pretty colors. And it costs $0.15 more per pen. Commenters on Amazon have been having fun with this one for a couple of days. Not sure why this is bubbling up now, although one publication speculated that the wave of back-to-school shoppers have noticed them.

Posted by Howard Wasserman on August 30, 2012 at 10:02 AM in Culture, Howard Wasserman | Permalink | Comments (0) | TrackBack

Thursday, August 23, 2012

Presidential succession on TV

Presidential succession is a treasure trove for television plots. The West Wing featured six different storylines involving selection and succession of the president or vice president (some for drama, some necessitated by the untimely death of actor John Spencer).

This summer, we have been watching Political Animals, a cable mini-series depicting a thinly veiled Hillary Clinton (played wonderfully by Sigourney Weaver), divorced from a thinly veiled Bill Clinton, and working as Secretary of State for the man who beat her in the primary (who is not remotely reflective of Barack Obama). In Sunday's season finale, the Twenty-fifth Amendment returned as guest star.

Spoilers after the jump.

Air Force One crashes into the ocean off the coast of France and a rescue/recovery mission is under way; some bodies have been recovered, but not the President. The Vice President (who is a total sleaze and the political villain of the show) summons the Chief Justice to the Oval Office to administer the oath of office, which would make him the President. When told of this plan the Secretary of State races to find all the cabinet members and get them to sign a letter under § 4 of the Amendment, declaring the president unable to discharge his duties. The VP and the Secretary of State then have a showdown conversation in the Oval Office, in which she stresses the constitutional crisis that would arise if it turns out the president survived the plane crash and there were two presidents. The VP backs down and signs the letter (§ 4 requires the VP and a majority of the cabinet); the Secretary congratulates him on now being the acting president (but not the President) and the VP/AP shoots her an angry glare.

It was certainly done in a melodramatic fashion that was not poltically realistic. In reality, the Chief never would have even shown up at the White House or been prepared to administer the oath absent confirmation that the President was dead---he would not just have done it because the VP told him to. Or, if he were in the room, he certainly would have had something to say about whether the oath was constitutionally appropriate, rather than just standing there silently in the background (out of focus) as the two political leaders argue. Also, in reality, a VP would be highly circumspect before taking the oath (as Lyndon Johnson apparently was in 1963, albeit pre-Twenty-Fifth Amendment) and would want both certainty as to the president's condition and the public's mood; of course, the VP in this show is such a bad guy that his conduct is not surprising. Finally, since the possibility remained that the crash was  terror-related, every one of these public officals would have been sitting in the secret bunker, not in the White House or in Foggy Bottom.

Still, while the politics were not quite right (this is, after all, more of a soap than a political drama), they did get the Constitution right.


Posted by Howard Wasserman on August 23, 2012 at 10:05 AM in Culture, Howard Wasserman | Permalink | Comments (1) | TrackBack

Monday, August 20, 2012

Sgt. Pepper's Lonely Hearts Mad Men, Part II

Two months late with this one, but after focusing on it in late June, I dropped it as the summer progressed. In May, I wrote about a series of posts by Emily Viviani, arguing that the recent season of Mad Men lyrically, thematically, and structurally used Sgt. Pepper's as a template.

In June, Emily wrote the final piece on the last three episodes of the season. I think the lyrical connections are a stretch. But I was particularly intrigued at the way season's penultimate episode functions as a mirror-image of the premiere--like the version of the song "SPLHCB" that opens the album and the reprise that is the penultimate song.

It is thought-provoking, if nothing else.

Posted by Howard Wasserman on August 20, 2012 at 10:44 AM in Culture, Howard Wasserman | Permalink | Comments (0) | TrackBack

Thursday, July 12, 2012

A lawyer show I'd watch

Breaking Bad's Vince Gilligan ponders a spin-off featuring corrupt attorney Saul Goodman. Perhaps because Saul is so over the top, this could be an awesome show. See why after the jump.


Posted by Howard Wasserman on July 12, 2012 at 04:44 PM in Culture, Howard Wasserman | Permalink | Comments (0) | TrackBack

Friday, July 06, 2012

Is the (Printed) Law Review a Flower that Should Bloom?

Over at the Atlantic, Walter Olson reprises the claim that law reviews are worthless. Among his reasons, he notes the ready availability of other outlets for law professors to share their views about matters of significance (and in this vein, he has in mind websites like TNR or the Atlantic or law blogs like Volokh or Balkinization or perhaps ahem...). My initial response: let a thousand flowers bloom. If, in addition to writing for law reviews or university presses, prawfs want to write on blogs and do opeds, they should do so. But if Olson's saying, we should get out of the long form scholarship game, I say a pox on his house. I don't think he's actually saying that, although he suggests it by tired references to Chief Roberts' views about Bulgaria and Kant.

Regardless of whether Olson denies the net value of long form scholarship, I think he is wrong to assume that "talented law profs" seek out short form options to present their ideas because that's the first best place to be.  I can't speak for others, let alone the class of talented law profs, but I suspect at least some of us hardly desire to go online to do short form writing as such. Rather, it's more a matter of resignation about where the eyeballs might be and what civilians' attention levels are. If 50,000 or 1 million people read the articles on my SSRN page, I would probably never care to write an oped about a legal issue, let alone a blog post. Indeed, I suspect the reason we care about the placement ladder is largely an assumption that if it places in a top journal, it will get read more (by the right demographic). But writing to get the argument right requires patience and diligence. Opeds don't reward that. At best, they're a preview or a trailer of the real thing.

And fyi, Walter, writing for the Atlantic and whatnot is not always easier too. Compared to blogposts, opeds or essays for general mags are more annoying because of the comparative lack of control or slowness of publication. For example, the Times accepted an oped I co-wrote more than a month ago, and we're still waiting to hear (even vaguely) when it will run! Most opinion journal editors act like tyrants because they know they can get away with it. (Not you of course ___, ___,  etc!) And compared to law reviews, which are admittedly slower to publication (and this has changed somewhat with the proliferation of online law review addenda/fora/pennumbra etc), opeds or mainstream essays are neither easy to place nor necessarily reasonable about editing. At bottom, I usually enjoy the experience of  writing for law reviews more than writing for popular press.  Not always, but enough to want to stay in the law review publication game. To the extent I write for the mainstream media, it's more because I think I have an obligation to those who fund my scholarship to try to get the ideas out into the mainstream rather than simply hope for citations within the law review or philosophy/political theory literature. Anyway, I might be an outlier, and maybe Olson's narrower point, that we'd be better off with only online scholarship venues, is true. But, fwiw, I am happily the kind of person who still enjoys looking through the pages of HLR, the Mich LR books issue, and most of the other journals in our faculty lounge.

In any event, Olson's essay focuses on a sideshow. The real problem in law scholarship is not where it appears or how long it is, but whether it is lockboxed. To my mind, every piece of legal scholarship produced should be available online either in final draft or penultimate draft. I actually think scholars have an ethical duty to make that happen, at least in the law context. But that's another blog post.


Posted by Dan Markel on July 6, 2012 at 11:10 AM in Article Spotlight, Blogging, Culture, Law Review Review, Life of Law Schools | Permalink | Comments (2) | TrackBack

Tuesday, July 03, 2012

Signing Off and Remembering Andy

GriffithMultitasking has its limits -- especially in the midst of a major move. As I prepare to head south to Savannah Law School, I wistfully regret not having more time to post on Prawfs during the month of June as frequently as I would have liked, but, as always, I enjoyed my stay. This time around, I'd like to sign off with a posting dedicated to the late and always wonderful Andy Griffith. His first film, A Face in the Crowd (1957) is featured in Advocacy to Zealousness, but Griffith is best known as a fictitious television sheriff and lawyer. Whenever I watch A Face in the Crowd, I think about Griffith's wonderful range as an actor and artist, and how he was celebrated for only a small portion of what he was capable of conveying on the big and small screens of film and television, respectively. Having experienced Griffith as Lonesome Rhodes makes me see Andy Taylor and Ben Matlock a little differently -- with an increased awareness of the depth beneath the surface of affability, and a realization of Griffith's strategic choice to go further in his career by staying in second gear indefinitly rather than shifting to fourth for a brief several miles. He personified some of the most beloved characters related to law and order in popular cultural history. Much like Lonesome, yet in a vastly more positive and productive way, Griffith read his audience and went with what they wanted, what "worked" for the long haul, and he seemed to be at peace with his decision to embrace his "brand" throughout his career. Do we also do this as law professors, or do we continue to stretch and grow throughout our careers? If you've ever shown a Griffith clip in class, which one(s) did you use?

Posted by Kelly Anders on July 3, 2012 at 04:19 PM in Culture, Current Affairs, Film, Life of Law Schools, Teaching Law, Television | Permalink | Comments (2) | TrackBack

Wednesday, June 27, 2012

Nora Ephron, Distinguished Legal Theorist, RIP

It's with great sadness that I note Nora Ephron's passing. Here's the Times obit. She did so many things surpassingly well that I'm struck by the absence of discussion about her many contributions (perhaps unwittingly) to the realm of legal theory. Tomes could be written on her insights as they apply to law, and not just the human condition.  Here are just a few treasures of hers. Feel free to add your own in the comments. May her memory be a continued blessing to those who loved her.

1) In the end, I always want potatoes. Mashed potatoes. Nothing like mashed potatoes when you’re feeling blue. Nothing like getting into bed with a bowl of hot mashed potatoes already loaded with butter, and methodically adding a thin cold slice of butter to every forkful. The problem with mashed potatoes, though, is that they require almost as much hard work as crisp potatoes, and when you’re feeling blue the last thing you feel like is hard work. Of course, you can always get someone to make the mashed potatoes for you, but let’s face it: the reason you’re blue is that there isn’t anyone to make them for you. As a result, most people do not have nearly enough mashed potatoes in their lives, and when they do, it’s almost always at the wrong time."

2) You're the worst kind; you're high maintenance but you think you're low maintenance.

3) But, really, what's so hard about finding an apartment? What you do is look in the obituary section. You see who died, find out where they lived, and tip the doorman. What they could do to make it easier is combine the two. You know, Mr. Kline died yesterday, leaving behind a wife, two children, and a spacious three bedroom apartment with a wood burning fireplace. 

Posted by Dan Markel on June 27, 2012 at 09:48 AM in Culture, Current Affairs | Permalink | Comments (2) | TrackBack

Sunday, June 24, 2012

Changing the rhetoric on women's sports

The sports world marked yesterday's 40th anniversary of Title IX by showing a lot of women's sports on TV, including Olympic trials in a number of sports (such as diving and track) and a marathon of WNBA games.

I also caught a new Nike ad, titled Voices. It features close-up shots of basketball players Diana Taurasi and Lisa Leslie, boxer Marlen Esperaza, and marathoner Joan Benoit Samuelson (I still remember her winning the first Olympic women's marathon in Los Angeles in 1984, wearing a white painter's cap) talking about the obstacles and challenges they faced growing up and starting to play sports. Notably, each of the four is a different age (ranging from 20s to 55) and grew up at different stages in Title IX's 40-year history. Those head shots are interspersed with shots of young girls in uniform lip-synching their comments. This ad can be seen as the successor to Nike's famous 1995 If You Let Me Play (regarded by many as one of the all-time best ads). Both can be seen after the jump.

In watching them, note the new rhetoric and narrative. The earlier ad tried to convince the viewer that women and girls should be ableto play sports by citing all the instrumental benefits that come with participation in sports (better grades, increased self-confidence, better health, etc.). The new ad says that women and girls do and should play simply because they want to. Oh, and because they're really freaking good. This strikes me as progress.




If You Let Me Play:



Posted by Howard Wasserman on June 24, 2012 at 10:10 AM in Culture, Current Affairs, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Friday, June 22, 2012

The People's Law School

Original_Volkswagen_Beetle_AdToday in 1934, the Reich Association of the German Automobile Industry commissioned Ferdinand Porsche to design a "people's car" that would be marketed to the masses, and that would serve as a competitive alternative to models that were only accessible to a fortunate few. Porsche's design later became the Volkswagen Beetle. If you had to design a model for a "people's law school," what would it contain, and how would it compare to schools that already exist?

Posted by Kelly Anders on June 22, 2012 at 12:16 PM in Culture, Current Affairs, Life of Law Schools | Permalink | Comments (8) | TrackBack

Sunday, June 17, 2012

Images of Father's Day

As the heavily involved father of a daughter, I am often keenly aware of two things: 1) the never-ending pop culture presentation of the goofy, clueless husband/father who never remembers important dates and is always scrambling at the last minute to get a gift or card, and 2) the ideas (and ideals) of the father-daughter relationship.

After the jump and in honor of Father's Day, I offer the following images:

IMG_2376This photo was taken at around 5 p.m. yesterday at a Target in Miami. The crowd (almost all women) stretches into the aisle, everyone waiting to get at the rack of Father's Day cards.



4852b0b088b4012f2fe200163e41dd5bThis is today's Doonesbury, which wordlessly captures the father-daughter relationship. It was a bit dusty around the house this morning.

Posted by Howard Wasserman on June 17, 2012 at 12:27 PM in Culture, Howard Wasserman | Permalink | Comments (0) | TrackBack

Thursday, June 14, 2012

Prison Rape and Cost Benefit Analysis

Over at the GULC faculty blog, Lisa Heinzerling has a very sharp post criticizing the Administration for undertaking a 168 page report that performs a cost benefit analysis of prison rape reform efforts. Prof. Heinzerling labels the effort "a labored, distasteful, and gratuitous essay on the economics of rape and sexual abuse."

I haven't had a chance to digest the report yet. Early feedback from some of my FB friends show substantial support for Prof. Heinzerling's point of view. I wonder what the defenders of the report might have to say in its favor, though I suspect some will say that the report is meant to offer its own defense!

Posted by Dan Markel on June 14, 2012 at 05:09 PM in Article Spotlight, Criminal Law, Culture, Current Affairs | Permalink | Comments (1) | TrackBack

Tuesday, June 12, 2012

NFL Bounty Scandal - Pre-Saints?

I feel I’m coming a little late to the party, given that this is my first guest post and we’ve almost hit the middle of June.  I’ll blame it on Law and Society in Hawaii, although Dave didn’t seem to have problems posting while he was there…

 I am hoping this month to post some things on drugs, guns, and general border crime stuff – all the fun stuff in my wheelhouse.  I also have enjoyed looking at some things on Fast and Furious and the Ted Stevens prosecution too, so I might say some stuff there too.   We’ll see how far we get.

 But first, I’ve been doing some research on prominent prosecutions gone wrong (hence the interest in both Fast and Furious and the Ted Stevens prosecution, and we can likely chalk the John Edwards prosecution up there now as well).  One of the “case studies” I’m looking at is from the Archer Daniels Midland price-fixing investigation in the mid-90s (and thankfully, Kurt Eichenwald put everything together in a nice book for me to read: The Informant (published in 2000 and made into a movie staring Matt Damon in 2009, although I can’t find the movie anywhere here in Laramie so I haven’t seen it yet)).  While reading through the book, I noticed something that seems to have a played a prominent role in sports news this past few months, so I wanted to comment slightly on that.

 By way of background:

the ADM investigation involved a number of FBI agents, AUSAs, folks from Main Justice and other officials investigating ADM allegedly engaging in price fixing with other foreign corporations.  The FBI became involved when Mark Whitacre (“the Informant”) started cooperating and recorded numerous conversations with officials from other companies and persons working at his own company.  Whitacre seems to have acted at times as a rogue agent (and also seems to have engaged in embezzlement from ADM while working as a CI (confidential informant)) and ultimately got a pretty high chunk of time in prison.  While my research deals with the problems inherent in having a prosecutor run such an investigation, that isn’t the point of this post. 

 To make a long post short (too late), I noticed some information about the NFL bounty scandal in the book.  On p. 465 of the book, Eichenwald describes a FBI interview of Ron Ferrari, one of Whitacre’s salesmen and someone the FBI thought might be involved in the price-fixing.  Ferrari played linebacker for the 49ers during the Joe Montana years, and the FBI questioned him about $25,000 in a safe-deposit box (thinking it might have come from price-fixing).  Ferrari tells the FBI this is money from “unofficial bonuses” he received while playing football for the 49ers.  He goes on to indicate that sometimes, when there were unpopular players on the other team, the coaches would pay “little bonus payments” for a “particularly vicious hit on one of those unpopular guys.”  This seems exactly what the NFL bounty scandal is all about, but this is an allegation of it happening in the mid-80s, a long time before the Saints “bountygate” came out.

 So, after my exhaustive internet research on this issue (about 2 minutes on Google), as far as I can tell, this information never made it to the NFL.  In 2000, Eichenwald provides evidence about these bounties occurring in the NFL, and yet, no mention is made of that within the Saints “bounty-gate” discussion.  Of course, I’m not surprised that none of this information really made much of a dent back in 2000 because a) it isn’t likely that anyone associated with the NFL read Eichenwald’s book, and b) the bounty-gate stuff seems more of a big deal now given all of the concussion-related news and suits that have arisen in the past year or so.

 Of course, now that I’ve written this post, I’m sure I’ll be getting called by Roger Goodell… 

 Thanks for letting me post, and I look forward to trying to post some interesting things here while I’m here.    


Posted by Stewart Young on June 12, 2012 at 02:29 PM in Criminal Law, Culture, Film, Sports | Permalink | Comments (1) | TrackBack

Tuesday, June 05, 2012

"The Wire: The Musical"



Posted by Howard Wasserman on June 5, 2012 at 06:13 PM in Culture, Howard Wasserman | Permalink | Comments (1) | TrackBack

Monday, May 28, 2012

Sgt. Pepper's Lonely Hearts Mad Men

I just found this, although the discussion has been going on for a couple of weeks. Yi! News is a relatively new group blog featuring a "blend of news coverage and original features in the fields of sports, music, politics, law, social media and whatever else is pertinent to today’s 20-something audience." It's main writers include several law students and a practicing lawyer.

Several weeks ago, a guest author, Emily Viviani, proposed a theory that the current (fifth) season of Mad Men has been thematically, lyrically, and structurally following Sgt. Pepper's Lonely Hearts Club Band. The first installment (covering Side One, for those of us who remember records having "sides") is here; the first three songs of Side Two are here, here, and here. Emily has not updated her discussion to link yesterday's episode, "The Other Woman", to "Good Morning, Good Morning," but I'm looking forward to it. Having just checked the lyrics, I think I see where she may go with it.

It's an interesting theory (confession: I've done the "Wizard of Oz"/"Dark Side of the Moon" thing), particularly given the time frame covered in the season (it started in June 1966, we are now sometime in January 1967, and Sgt. Pepper was released in June 1967). And one episode even revolved hevaily around Don not "getting" or recognizing the Beatles and ended with Don listening (without much enjoyment) to "Revolver," the 1966 album that marked the band's transition and led directly to Sgt. Pepper.

Emily's theory is that the final episode (linked to "A Day in the Life") will land on February 10, 1967, the day the 25th Amendment, a direct response to the Kennedy Assassination, was ratified. If so, it gives new meaning to the line "He blew his mind out in a car".

Could Matt Weiner really be doing this on purpose? If so, it is utterly brilliant.

Posted by Howard Wasserman on May 28, 2012 at 01:19 PM in Culture, Howard Wasserman | Permalink | Comments (0) | TrackBack

Monday, May 21, 2012

Reading Assignments as a Condition of Bail? Really?

Well, as Judge Vaughn Walker says, it might have something to do with the seat.

That's because when Judge Walker's successor, Judge Yvonne Rogers, became a federal district court judge in San Fran, she seems to have inherited his penchant for creative sanctioning. You might recall Walker garnered fame not only for his role in striking down Prop 8's restriction on same-sex marriage, but also for the shaming sanction  he imposed on Shawn Gementera, who had to stand outside a post office with a sign that said "I stole mail.  This is my punishment."  (The Gementera sanction was affirmed by a divided panel on the Ninth Circuit and the opinion is now part of many crim law casebooks. Disclosure: I had a small role in the appellate proceedings.)

Now, Judge Rogers has triggered some curiosity across the country for a recent bail provision imposed on Otis Mobley. Specifically, while Mobley is released in advance of his upcoming trial, he is required, as a condition of bail, to read certain books for an hour a day and to write a report for a half hour a day.

The reading list hasn't yet been circulated, but still, one has to wonder about the suitability of such a condition with respect to bail. It wasn't included in the list of conditions recommended by the magistrate judge--not surprisingly.  Regardless of how one feels about such creativity in the context of punishment,* one has to wonder about its usage when it comes to bail conditions.

After all, bail is pre-trial, and thus pre-adjudication. Moreover, we do have this business associated with the presumption of innocence. SO, while it's one thing to say that the moral weight of such a presumption can be overcome when it comes to substantial and reasonable fears having to do with flight risk or danger to the community (or danger to the judicial process itself in cases of witness tampering), those issues are hard to imagine as related to the conditions associated with reading and writing reports. Rather, it seems as if reading and writing reports are tethered to the blaming and communicative functions of punishment for wrongdoing. To my mind, such conditions should not be imposed because they blur the lines of what we're trying to achieve, as a society, before and after adjudication. To be clear, I'm not saying that Mobley should not be released (although he has some, um, icky issues to work out) and I'm not saying he should be detained pre-trial. But the judge's order is curious because it is likely to be conceptually confused about the nature of pre-trial release and detention. It would be nice if we could find out, soon, what the judge is assigning, and why.

*Putting aside some rule of law reservations that nag at me about "creative" sanctions and punishment generally, I'm largely in favor of guilting punishments (which are designed to facilitate moral education without the public degradation associated with shaming punishments). As a general matter, it's fair to say that assigned reading and writing can facilitate those valuable guilting goals, perhaps even quite well. (Still, I'm not sure I'd go so far as ordering a defendant to write a book, as this WSJ story details about a defendant in a pharma-related crime.).  By contrast, I have a strong aversion to shaming punishments, which I think are largely illiberal and anti-retributive in spirit, as laid out here, among other places. For those interested in alternative sanctions more generally, I've linked to a few here (under media appearances) for some news stories over the years about the phenomenon.


Posted by Dan Markel on May 21, 2012 at 03:57 PM in Article Spotlight, Constitutional thoughts, Criminal Law, Culture, Current Affairs, Dan Markel | Permalink | Comments (2) | TrackBack

Sunday, May 20, 2012

On the Alleged Cultural Insensitivity of the Fojol Bros.

The Fojol Bros. is one of the most popular food trucks in Washington, DC and is partly responsible for the popularity of food trucks in the nation's capital more generally.  It is also at the heart of a recent and growing controversy about race and culture.  The Fojol Bros. -- a self-described "traveling culinary carnival" that offers Indian, Ethiopian, and Thai food -- has come under fire for the manner in which they sell their food.  In particular, the food truck purveyors, who are all said to be white, wear turbans and fake novelty mustaches, and play Indian music  in the background (see this Travel Channel spotlight of the food truck).

This led DC local Drew Franklin to issue an "Open Letter to the 'Fojol' Bro-dawgs" on Facebook, in which he charged that those behind the food truck are "brazenly insulting of others' cultures," "over-the-top racist," "worthy ambassadors of poor taste," "faux-mustachioed goons," and "well-meaning (if woefully misguided) white boys with a contemptible sense of humor."  Franklin determines that the Fojol Bros. approach is "not cool," "decidedly uncool," "unacceptable," and "an embarrassment to my city."  An online petition subsequently emerged, declaring that the purveyors' presentation amounts to a "stereotype and mockery," and imploring visitors to make clear that they "are not OK with their Orientalist and racist appropriation of South Asian and East African cultures." As of today, the petition has been signed by over 1,000 people -- a not insignificant number.  A writer with the Washington City Paper -- which I read regularly when I lived in DC -- agrees with the critics, calling the ethnic aesthetic of the Fojol Bros. "unsettling and offensive and lazy all at once."

As a Sikh of Indian descent whose members of my immediate and extended family wear turbans and have beards, as someone whose civil rights work and entry into academia was triggered by post-9/11 discrimination against Muslims, Sikhs and South Asians, and as someone who has written about the post-9/11 experiences of Sikhs in book, journal, and essay formats, I believe I am within the zone of those who are implicated by and can speak to the Fojol Bros. tactics.   My preliminary verdict: as with Johnny Carson's Carnac and ESPN's Tony Kornheiser (who both predated the "hipster" fad), I find the Fojol Bros.' schtick tacky, but not offensive or racist.  

First, there is the argument, as a Columbia sociology professor told The Washington Post, that the Fojol Bros. "'harken[s] back to a colonial period when it was okay to exoticize' other cultures."  Put more directly, angry asian man, a popular blog that provides sharp commentary on racial issues involving Asian-Americans, opines that the Fojol Bros. are "totally colorblind -- and I mean that in the worst way -- of the privilege that makes [them] think this is okay."  It seems to me that intent is a relevant, if not important, consideration in weighing the propriety of this food truck's schtick.  Whereas colonialists and some whites may have appropriated certain cultural elements in the course of subjugating other people, or based such appropriation on feelings of entitlement or superiority, I do not see any evidence that this is taking place here.  Justin Vitarello, one of the food truck's owners, for example, says of turbans: "They're beautiful. They're comfortable. They're colorful."  The Fojol Bros. appear to be engaged in an attempt to be whimsical and light, rather than one to belittle or marginalize. 

For the same reason, the highly-charged criticism that the Fojol Bros. is participating in a "minstrel act" fails to persuade.  Minstrel shows generally portrayed African-Americans in a negative light as slow, lazy, dumb, and incompetent, etc.  As far as I can tell, there are no such characterizations by the Fojol Bros. -- there is no "brown-face," "[t]here's no accents" as Vitarello notes, and there are no negative behavioral or mental traits that are stereotyped or caricatured.  (These qualities make the food truck distinct from Ashton Kutcher's "brown-face" depiction of "Raj," a generic Bollywood producer).  It seems, rather, that the Fojol Bros. act and speak as they normally do, though they happen to wear turbans and fake mustaches, while listening to Indian music. 

To be sure, in some instances the wearing of some cultural or ethnic elements may, by itself, give rise to reasonable charges of racism -- even if the wearer does not intend any harm, even if there is no accent, and even if there is no skin alteration or manipulation of facial features.  That does not mean, though, that any wearing of certain items automatically supports a charge of racism.  In other words, even eschewing an inquiry into the purveyors' subjective intent, it has not been clearly demonstrated that the wearing of the colorful turbans and fake mustaches is objectively racist or improper.

As far as turbans are concerned, I acknowledge that turbans, for some, are sacred pieces of attire that are effectively extensions of one's self.  But turbans are not categorically sacred or significant.  The religious do not have a monopoly on the use of turbans or their meaning.  In fact, turbans are worn by different people (e.g., the religious and non-religious, Sikhs, Muslims, Afghans, Indians, Iranians, Persians, and North Africans) for different reasons (e.g., "to signify their class, caste, profession or religious affiliation," or "to demonstrate their wealth and power").  Indeed, I have attended a number of weddings where white men, who are usually part of the groom's party, wear turbans of the same exact sort worn by the Fojol Bros.  Not once did I hear or witness an objection to these individuals' wearing of a turban as part of the wedding events.  These individuals, it seems to me, wore the turbans to be festive, and the Fojol Bros. appear to be doing so as well.  The only difference, then, is that the individuals at weddings effectively had "our" permission and approval, whereas the Fojol Bros. don't.  That difference does not, in my view, justify the view that one is offensive and racist, while the other not.  (It is true that the Fojol Bros. are engaged in a commercial enterprise rather than a wedding -- but the underlying festive motivation may be comparable if not identical.  Others, such as artists Andre 3000 and Snoop Dogg, have worn turbans as part of their commercial persona, the latter of which was largely celebrated by Indians and Sikhs.  The commercial nature of wearing turbans, therefore, does not transform the wearing into something "wrong.")

Thus, it is difficult to contend that the Fojol Bros. are extending colonialist attitudes or ambitions, or are taking advantage of some dominant or exceptionalist mindset that enables them to poke fun at the other with impunity.  Moreover, their schtick seems to be qualitatively different than minstrel shows.  Nor does the wearing of turbans, on its own, objectively signify disrespect.

Let me be so bold as to suggest that Fojol Bros. may be doing a favor to targeted communities.  After 9/11, turbans became equated with terrorism, due to the fact that Osama bin Laden and his cronies wore turbans and their images were broadcast regularly on television.  Some Sikh civil rights activists and I used to remark that we have been unable to offer the American public an alternative to the turban-means-terrorism reflex.  Perhaps the Fojol Bros. can help diminish the turban's terrorist connotation, if not normalize the turban, such that people will see it as something other than a marker or cue for hatred, anger, and violence. 

At bottom, it seems to me that the fuss over the Fojol Bros. amounts to purely subjective instincts or judgments as to what is "offensive," "wrong," or "not cool."  As the Supreme Court has said, “[c]onduct that annoys some people does not annoy others.” Coates v. Cincinnati, 402 U.S. 611, 614 (1971), and relatedly “what is contemptuous to one man may be a work of art to another,” Smith v. Goguen, 415 U.S. 566, 573 (1974).  Such subjective viewpoints hardly constitute a sound reason to compel the Fojol Bros. to change their ways.

A final note: while I conferred with multiple turbaned Sikhs in writing this post, I do not claim to speak for other Sikhs, Indians, or South Asians on the subject.  Of course, individuals within and outside of these groups are free to weigh in on the controversy as they see fit.  And whether the Fojol Bros. schtick is a wise business move is beyond the scope of this post.  This is to only note that, for my purposes, I do not find the schtick offensive or racist.  I honestly commend the critics for expressing themselves in word and in action by refusing to do business with this food truck.  The Fojol Bros. may very well go on without the turbans and mustaches -- but I suspect it will be due to the prospect of lost profits, not the force of any critics' advanced principles.

Posted by Dawinder "Dave" S. Sidhu on May 20, 2012 at 03:56 PM in Culture, Food and Drink, Religion | Permalink | Comments (0) | TrackBack

Thursday, May 10, 2012

Not the end of football

Back in February, I wrote about an essay on Grantland by Tyler Cowen and Kevin Grier describing how footbal could end as a major sport as a result of head-injury lawsuits. Today in Slate, Will Oremus challenges that conclusion, arguing that the difficulty of proving liability in these cases given an assumption-of-risk defense and state-law sovereign immunity, makes it unlikely that we will see the numbers of big-money judgments that would cause high schools and colleges to want to get out of the football business.

Interestingly, Oremus rejects the idea that change can happen through lawsuits against individuals or even educational institutions. In his view, any change should

come not from the courts but from high-school athletic conferences, scholastic sports associations, and the NCAA. As the research rolls in, they need to take a hard look at the aspects of the game that inflict the most damage and implement rule changes accordingly. If football ends someday, it should only be because the powers that oversee the sport have tried everything to make it safe and determined that it can’t be done—not because lawsuits have spooked schools into giving up.

This is a sharp reflection of the modern understanding of tort law, the courts, and the administrative state. The regulating institutions should take care of the problems--even if those institutions have vested interests in protecting what they are supposed to be regulating. And courts do not achieve justice or truth at the systemic level--they only play on people's fear to surrender and pay out windfalls to a few individuals.

Posted by Howard Wasserman on May 10, 2012 at 02:13 PM in Culture, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Who Should Enjoy Credit for SSM Progress? My vote: Andrew Sullivan.

Success has many fathers, the old saying goes. With Obama finally coming out of the closet and embracing SSM openly, we might take a moment to pause and wonder: who warrants credit for this development?

Joe Biden the other day extended kudos to the TV show, Will and Grace. That might be right as a matter of mass culture. And no doubt Mitt Romney himself will eventually take credit for it, notwithstanding his current squeamishness. (Make sure to watch the Jon Stewart clip.)

But among the chattering classes of columnists, lawyers, and academics, many of whom were advocating SSM prior to Will and Grace, which only appeared 1998-2006, I think substantial (though certainly not exclusive) credit should go to Andrew Sullivan, and derivatively, through his support for Sullivan's editorship of TNR, Marty Peretz.  (For long-time readers, you may recall this is a point I made in a comment years ago with respect to an interesting exchange spurred by Ethan on whether TNR is "liberal.") 

Sullivan had edited TNR from 1991-1996. Whatever the merits of his editorship generally, and there were some wacky things that occured under his watch, he did an awful lot to persuade and then mobilize elite opinion and thought-leaders into support for same-sex marriage. He has remained a provocative and thoughtful writer on a range of political and cultural issues, but my sense is that his early years as a writer and editor for TNR will mark his most lasting contribution. Of course, this is just my speculation and no doubt it is related to when I became "aware" of the injustices to the LGBT community -- I was in college during Sullivan's editorship. So perhaps I should ask SSM supporters reading this blog who are roughly  five to 15 years older than I am (I'm turning 40 this year): when did you become an SSM supporter and who or what intellectual influences do you attribute it to?

Posted by Dan Markel on May 10, 2012 at 10:13 AM in Culture, Current Affairs | Permalink | Comments (0) | TrackBack

Friday, May 04, 2012

Brief Thoughts on Photoshop Diversity and Elizabeth Warren

Many thanks to Dan and the rest of the Prawfs regulars for having me as a guest this month. I'll be posting mostly about issues relating to my recent research on antidiscrimination, affirmative action, and diversity.

On that note, I have followed the recent discussion of Elizabeth Warren's racial self-identification with great interest. That discussion seems to me a symptom of an uneasiness with affirmative action and the diversity rationale that goes far deeper than the question of whether Professor Warren's self-identification was "accurate," or whether she was "seeking an advantage."

In my article Racial Capitalism, forthcoming in the Harvard Law Review, I argue that the diversity rationale for affirmative action assigns a value to non-white racial identity.  As a result of this value, the diversity rationale also creates incentives for predominantly white institutions to display and promote the presence of non-whiteness within the institution.

Schools' promotional materials provide one window into this phenomenon. At the extreme, schools have been known to photoshop people of color into photographs to communicate the impression of diversity and racial integration. In 2000, the University of Wisconsin notoriously photoshopped a black student into its admissions brochure (the original and photoshopped brochure can be seen here). Other schools have engaged in similar photoshopping, and the practice certainly isn't limited to schools (for a few examples, see here and here).

But even when promotional materials don't involve photoshopping, colleges and universities still engage in measures to advertise their racial diversity. A recent study examined the promotional materials of 371 colleges and universities and found that non-white students were significantly overrepresented in photographs -- for example, Asians made up 3.3% of enrolled students but 5.5% of students depicted, and blacks made up 7.9% of enrolled students but 12.4% of students depicted. Indeed, the trope of schools visually proclaiming their diversity  has become so common as to provide fodder for satire.

The drive to display diversity is not limited to the visual. Virtually every college, university, and graduate school website includes a prominent link to statistics touting the diversity of the school's student body.  And U.S. News currently maintains a ranking system -- apart from its influential but opaque system of overall rankings -- based on a "diversity index." Schools who score high on that metric often publicize their status.

So where does this leave us with respect to Professor Warren? Perhaps with the idea that Warren's racial self-identification is one issue, and Harvard's decision to claim her as a person of a particular racial identity is another. Sociological research suggests that it's relatively common for people of racially mixed backgrounds to identify themselves differently at different times and for different reasons, and Warren's explanation that she identified herself as Native American in law school directories because she wished to meet others who shared her background and experiences seems, at the very least, plausible.

An institution often has different incentives.  Given the value placed on diversity, an institution often has every incentive to maximize its apparent diversity.  This might happen with or without the knowledge of its members -- that is, Harvard might have chosen to tout Elizabeth Warren's Native American identity with or without her knowledge or consent.  Of course, I don't know exactly what happened in this particular situation, and it may be that no one really remembers at this point.  From personal experience, though, I know that institutions do claim individuals to boost their diversity numbers.  For instance, a large law firm where I worked for a summer decided to identify me as "Asian" in statistics proclaiming the diversity of its summer class, even though I'd elected not to self-identify in a demographic questionnaire it circulated.

My ultimate point is simply that it's analytically useful to separate institutional use of racial identity from individual self-identification.  Sometimes the two have little in common -- ask any person of color who's been involuntarily photoshopped into a picture.

I look forward to delving more deeply into these topics in coming weeks.

Posted by Nancy Leong on May 4, 2012 at 09:45 AM in Constitutional thoughts, Culture, Law and Politics | Permalink | Comments (0) | TrackBack

Wednesday, May 02, 2012

The politics of apolitical TV

We've been watching and enjoying the new HBO comedy Veep, which follows the exploits of a marginalized, marginally competent woman VP. The show draws a lot of humor from the way the titular Veep flails away, constantly asking her secretary whether the President has called (he never has), and working (not very well) on two token, dead-end policy items the President has given to her--"clean" jobs (and the issue is whether to put someone from the oil industry on the VP's clean-jobs commission) and filibuster reform.

The show (and commenters on the show) have made much of the show's supposedly apolitical approach. The President never is seen, no one mentions which party is in power, and the policy goals discussed are supposed to be non-partisan. This is at least supposed to be a far cry from The West Wing, which featured what I once called a "Democratic president that real Democrats only dream about-imagine a President with Bill Clinton's political skills, Michael Dukakis' policy goals, Jimmy Carter's commitment to monogamy, and Daniel Patrick Moynihan's intellect."

So does the show succeed at being apolitical?

Some Republicans initially complained that the show was another example of Democrats making fun of Sarah Palin, although that is only true if all depictions of an in-over-her-head female politician now are parodies of Sarah Palin. That we now associate this sort of character with Palin just shows the difficulty of political parody--truth has surpassed satire (part of why I actually find it hard to watch The Daily Show at times).

But filibuster reform is not an apolitical issue, at least in the current environment. It is something strongly wished for by many liberals and progressives, particularly among academics and political commentators, who view the Senate as a defective, unrepresentative, anti-democratic institution made worse by the costless, silent, and routine filibuster that is functionally an all-purpose super-majority requirement. Now that might be a product of momentary political majorities and President Romney and a 52-seat Republican Senate would be pushing the elimination of the filibuster as a matter of patriotic duty (actually, this may be a virtual 2013 certainty if events unfold that way). But the notion that the Senate needs reforming, given its unrepresentative nature, is a decidedly lefty view right now.

The last point is to consider what it says that filibuster reform is one of the symbolic-but-pointless issues that a President would dump on a marginalized VP. It makes sense in one way, in that it has no chance of going anywhere, so it is precisely the no-chance symbolism you pawn off. On the other hand, knowing the reality of routine filibusters and what they have wrought shows this as a genuine problem with an actually attainable solution; one would hope a President would get behind this as a real issue in the interest of his political agenda. But from a show's standpoint, it is the type of procedural/technical concern about which the public does not care--and thus neither would the President.

Posted by Howard Wasserman on May 2, 2012 at 09:57 AM in Culture, Howard Wasserman, Law and Politics, Television | Permalink | Comments (1) | TrackBack