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Sunday, August 16, 2009

"Jon & Kate (+ 8)" are great--at least for generating interesting legal questions

There is no doubt that triplets, quadruplets, and other higher-order multiples (HOMs for short) attract attention.  Taking our 23-month-old triplets out is always, well, a trip.  People who venture out with us are always surprised by the attention that we draw, which runs the gamut from congratulatory to curious to downright rude.  We usually ignore the rude comments and answer the "good-faith" questions honestly, and, so long as the boys are not busy grabbing things off store shelves, try to do so somewhat patiently.  The usual comments (and my most sarcastic replies) are:

1.  "Are those triplets?"

Reply:  "No, they are all three years apart even though they are the same size.  We give the smaller ones coffee and cigarettes."

2.  "Are they natural?"  (Or my favorite variant, "Did you use fertilizer?")

Reply:  "No, they came from Mars." (Alternate reply:  "Yes, three bags of Scott's Turfbuilder, actually."

3.  "How did you get them?"

Reply:  "Well, my husband and I were very busy that night..."

4.  "Better you than me."

Reply:  "Obviously."

While we have had plenty of onlookers who have proved that they could count to three or take cell phone pictures while inspecting our boys, we have never experienced anything so terribly obnoxious as what other parents of multiples have reportedly encountered, such as strangers who insist that their children are the products of irresponsible decision making.  One apparently innocent comment, however, does raise my hackles due to the frequency with which it is asked:

5.  "Do you watch that show "Jon & Kate +8""? 

Reply:  "Yes, triplets plus a career leave lots of time for watching TV." 

For reasons that I really can't entirely verbalize, "Jon & Kate +8," a TLC reality TV show following the lives of Jon and Kate Gosselin and their 8 children (sextuplets and one set of twins), arouses my ire.  Perhaps it is the sensationalism that seems to follow the family everywhere, or the public criticism of Kate's personality and parenting skills.  Perhaps it is the fact that I seem to hear about the show everywhere I go.  It's like an annoying song (like Kajagoogoo's unfortunate 1980s hit "Too Shy") that is continously on loop, playing in the background of every store I enter and every radio station I tune into.   

Nonetheless, the show presents many interesting legal questions that I do find rather engrossing.  The Pennsylvania Department of Labor is currently considering whether the Gosselins' reality show comports with the state's child labor laws.  Each state has different child labor laws; children in California, predictably, are the most protected; regulations there, for instance, require 15% of each child's earnings to go into a "Coogan Account."  However, Pennsylvania's laws have yet to catch up with the "family reality show" fad; in that state, children seven years of age and older can receive a work permit and begin to work in entertainment.  Jon & Kate's twins, born in 2000, are older than seven, but their sextuplets (born in 2004) are clearly younger.  This raises interesting issues.  Are these children subject to child labor laws in the first place?  The Gosselins' children are filmed during their day-to-day activities, including in their own home.  Is this "work"?  Yet, the Gosselins get paid a substantial amount of money--up to $75,000--per episode because these children appear on the show.  The children--and their parents' dealings with them--are clearly the source of entertainment value.  Jon and Kate are now clearly celebrities in their own right as well, but the Gosselins have only become famous through their higher-order multiples (HOMs).  

As HOM births become more common, creating camera-ready families, states will need to update their child labor laws, making decisions that California has already considered:  how strong can the lights be, and how long can the children be under them?  What on-site care or tutoring must be provided?  How many caretakers?  Which financial arrangements will best protect the childrens' assets?  I suppose we'll have to stay tuned.

Posted by Jody Madeira on August 16, 2009 at 12:26 PM | Permalink

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Comments

I am sure that triplets and other HOMs draw more attention, from friendly to curious to rude, than large families generally do. But larger families today often face similar questions, including strangers approaching to lecture on the the world's resources and such, as well as the more routine "all yours?" questions. Friends report that this kicks in with as few as four, and really ramps up with five or six, far short of the reality TV standard, and far short of unremarkable family sizes a generation ago.

Posted by: anonymous dad | Aug 26, 2009 12:03:41 PM

I trust it was not simply because they were ad hominem remarks, but owing to the fact that they were ad hominen remarks of a certain sort. As Douglas Walton notes in Informal Logic: A Handboook for Critical Argumentation (1989), "the *argumentum ad hominem* is not always fallacious, for in some instances questions of personal conduct, character, motives and so on are legitimate and relevant to the issue." It may be prudent to be presumptively suspcious (i.e., something like 'guilty until proven innocent') when examining ad hominen arguments given that they're often unreasonable and fallacious, but I think we should acknowledge and appreciate those circumstance when ad hominem arguments are NOT fallacious. Walton provides us with one example:

"GEORGE: The notorious problems we have been having with postal strikes means that there is no longer reliable mail service provided by the government. I think we ought to allow private, for-profit mail delivery companies to compete on an equal footing with the Post Office.

BOB: But George, you are a communist.

Let us suppose that in this case George is an avowed communist and has based his previous arguments on many standard communist principles and positions. Now, in many cases, calling your opponent in an argument a communist could be a fallacious type of *ad hominmen* attack. However, in this instance, Bob seems to have a reasonable point. If George is an avowed communist, and communists are for state control and against private enterprise, then how can George consistently argue for a for-profit mail service run by private enterprise. It seems like a legitimate question. Of course, George may be able to resolve the ostensible inconsistency in subsequent dialogue. But surely Bob is justified in challenging the consistency of George's position at this point in the dialogue. If so, then in this case, Bob's circumstantial argument is not fallacious."

Walton treats more complicated cases as well. And it's of interest that reasonable ad hominem arguments are often essential to politics and the courtroom (e.g., in the latter case: undermining the veracity of a witnesse's testimony owing to what is known about that person's character or past behavior). Please see ch. 6: 134-171 of Walton's book (above).

Posted by: Patrick S. O'Donnell | Aug 19, 2009 11:17:28 AM

Just wanted to note that I edited some of this comment thread to remove the ad hominem remarks. Those who make such remarks are hereby warned that their comments will be deleted, and they will be banned from the site, and if such comments are made anonymously, they cannot count on that anonymity to be protected.

Posted by: Dan Markel | Aug 19, 2009 10:04:34 AM

Joe--

I would certainly like to include some material on this fascinating issue in my "Reproduction, Childhood, and the Law" class; it really does dovetail nicely with state intervention in parental decision-making. While it would be a great topic to discuss in class, but I don't think I would assign much reading on it simply because of the wide variety of subjects that I already must cover in the course. I'm particularly interested in this topic because this is such an unregulated area; reality shows featuring young children--even infants--are a "new" phenomenon and until recently these questions did not generate too much interest. However, there is always the possibility that the fad may pass before any real regulatory schemes are in place. This might be unfortunate for the children of media-"friendly" parents. CNN had an interesting story today online..."Too Much Attention to Gosselins, 'Octomom'?" (http://www.cnn.com/2009/SHOWBIZ/TV/08/17/kurtz.gosselin.suleman/index.html)

Posted by: Jody Madeira | Aug 17, 2009 11:00:24 PM

Jody:

I would be interested in what you wind up thinking/teaching on this subject. I go over the basic child labor rules in my Employment Law class, but these "reality" shows raise a bunch of new and interesting issues I haven't really thought about.

And as to the other thing, at least it wasn't "Billy, Don't be a Hero."

Posted by: Joseph Slater | Aug 17, 2009 1:36:16 PM

Oh--and Mark--I absolutely agree. Only so many families at the "extreme" end of the child-rearing spectrum can have shows, and sooner or later audiences will be less intrigued by the lives of HOM families. Incidentally, the "multiple children" reality show craze also encompasses the Duggar family, who have 18 children (no HOMs), also have a show on TLC called "18 Kids and Counting."

Posted by: Jody Madeira | Aug 17, 2009 11:36:48 AM

Thanks, Joseph! I'll download Royal's article today--it sounds fascinating! This isn't an area in which I've done much research, but Jon & Kate and the Octomom show (whatever that will end up being) are relevant to my Children and the Law course, and so I've done some delving into the area this summer. I've also been curious about the this particular issue because Pennsylvania is my bar state, and Jon & Kate are from the Harrisburg/Hershey area in which I grew up (though we moved before the sextuplets!). My apologies about "Too Shy"--it's been stuck in my head for the past few days, and I decided to inflict the pain on others as well.


Posted by: Jody Madeira | Aug 17, 2009 11:32:49 AM

Curse you for reminding me of "Too Shy." Beyond that, in case you haven't seen it, Workplace Prof Blog has this item regarding some new scholarship on this point, which I will now cut-and-paste.

---

Dayna B. Royal has just posted on SSRN her article Jon & Kate Plus the State: Why Congress Should Protect Children in Reality Programming. Here's the abstract:

As popularity for 'reality' programming continues to increase as does the number of children living their young lives on camera, this article argues that the current legal regime is inadequate to protect these children whose parents have traded their children’s best interests for fame and fortune. It argues that Congress should enact a statute providing a sliding scale of prohibition from reality programming for children based on age. A federal statute would bring clarity to this unsettled area of the law while ensuring that parents and programming executives cannot skirt individual state laws and continue to exploit the nation’s children

To this end, Part II identifies the various harms reality programming causes, arguing that participating in reality programming is detrimental both to the individual children and to society. Part III surveys the current legal landscape addressing the federal law on point - the Fair Labor Standards Act - and then numerous state laws, focusing heavily on those states with historic ties to the entertainment industry. Part III concludes that the current legal regime is inept at remedying this emerging problem and argues that state law is not the best vehicle to do so. Part IV posits that a national solution is necessary, canvasses the options, and then argues that a federal statute providing a sliding scale of prohibition is the best solution. Finally, Part V maintains that such a statute will not violate the Constitution because it is within Congress’s Commerce Clause authority and does not violate either parents’ due process rights or the First Amendment.

All the nation’s children deserve to live as children and not as spectacles for public amusement. A federal statute regulating employment in reality programming would prevent the sale of children’s privacy to the highest bidder.

Posted by: Joseph Slater | Aug 17, 2009 10:56:18 AM

As HOM families become more common, they may also become less "camera-worthy"--less of a spectacle--so such legal changes may be unnecessary.

Posted by: Mark D. White | Aug 17, 2009 10:37:02 AM

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