PrawfsBlawg

Fast food justice

One of my professional regrets is that I was unable to place this piece in any law review, although it remains my most-downloaded piece on SSRN. It was too early in the days of online supplements, I was entering only my third year, and I could not find any place for it.

This case would make a wonderful addition to the sequel (H/T: Peter Oh of Pitt): A Connecticut man is challenging a $ 300 traffic ticket for distracted driving by arguing that what the officer believed was his cellphone was a McDonald's hash brown that he was eating for breakfast while driving.* He was convicted by a magistrate, appealed to a trial judge, and is awaiting ruling.

[*] Query how eating while driving does not distract a driver.

Sound Symbolism, Trademarks, and Consumer Experience

A recent tweet from Ed Timberlake brought a new study to my attention. According to the authors of the study, beer tastes better when paired with the right music. (It also works with chocolate, among other foods). Possible applications include pairing a six-pack of beer with an mp3 for a curated listening experience.

This connection between hearing and taste reminded me of another line of research I recently mined for my article, Are Trademarks Ever Fanciful? (105 Georgetown L.J., forthcoming 2017). Trademark law presumes that when a word is coined for use as a trademark (like XEROX for photocopiers or SWIFFER for dust mops) the word can't carry any product signifying meaning, so it must be inherently source signifying. That presumption about coined words is not entirely true. In fact, there is a significant body of research into sound symbolism that indicates many sounds carry meaning independent of the words to which they belong. This is true for consonants and vowels, and true even if the word at issue is a nonsense word (like XEROX or SWIFFER).

Courts haven't realized that sounds convey meaning in this way. This is unsurprising because most consumers don't realize it either. But marketers know, and they spend a significant amount of time trying to craft marks that take advantage of sound symbols. In light of this research, the presumption that a fanciful (coined) mark is entitled to instant and broad protection may require some rethinking.

I'm excited to hear your observations about sound symbols and trademarks, or your favorite food/beverage and music pairings, in the comments below.

Too Much Information? GM Food Labeling Mandates

As NPR reported yesterday, voters in Colorado and Oregon will decide next month whether foods with genetically-modified (GM) ingredients should be identified as such with labeling. And why not? More information usually is better, and many people care very much whether they are purchasing GM foods. Moreover, it is common for the government to protect consumers by requiring disclosures of information. Thus, sellers of securities must tell us relevant information about their companies, and sellers of food must tell us relevant information about the nutritional content of their products.

Nevertheless, there often are good reasons to reject state-mandated disclosures of information to consumers. Sometimes, the government requires the provision of inaccurate information, as when states require doctors to tell pregnant women that abortions result in a higher risk of breast cancer or suicide. At other times, the government mandates ideological speech, compelling individuals to promote the state’s viewpoint. Accordingly, the First Amendment should prevent government from requiring the disclosure of false or misleading information or of ideological messages. (For discussion of abortion and compelled speech, see this forthcoming article.)

What about GM labeling?

Is this similar to requiring country-of-origin labeling for meat and produce, a policy upheld by the D.C. Circuit earlier this year? GM labeling likely will mislead more than inform. Many people harbor concerns about genetic modification that are not justified by reality. In particular, as the NPR report indicated, researchers have not found any risks to health from eating GM foods. Indeed, genetic modification can promote better health, as when crops are fortified with essential vitamins or other nutrients. For very good reasons, GM foods run throughout the food supply, whether from traditional forms of breeding or modern laboratory techniques. Thus, the American Association for the Advancement of Science has concluded that GM labeling “can only serve to mislead and falsely alarm consumers.”

[cross-posted at Health Law Profs and orentlicher.tumblr.com]

NYC’s Soda Ban: What’s All the Fizz About?

Reaction to New York’s 16-oz. soda limit has mostly come in two flavors.  In the right-hand tap we mostly have complaints about paternalism and the nanny state.  On the left, some grousing that (legal obstacles notwithstanding) a soda or sugar tax would have been a better policy.  (Then lurking under the counter are the local government nerds, but let’s leave them be for now.)   I’ll confess that the paternalism argument is too much for me to swallow.  As lots of folks have now shown, there is a perfectly ordinary externality case for obesity control, regardless of whether the policies help us to better control ourselves.

One could say something similar about lots of modern nudges.  Many of them -- smart meters, smart buildings -- are aimed at a classic externality problem, such as climate change.   There isn’t really a paternalism story there.  Maybe we could debate whether the nudge-y approaches are less “coercive” than your usual command and control regulation, but since no one has an especially good definition of coercive, I don’t think we’ll get anywhere.  And indeed, I think that is what you’d see if you read the various back-and-forths on coercion between Sunstein et al. and their critics. 

Maybe the best argument Sunstein and others (in particular, Sam Issacharoff and some smart economists) offer is that nudges are less “coercive” in the sense that they are more efficient (though they don’t typically put it that way).  Usually, the nudge disproportionately affects people who need it the most---sticky pension defaults are most effective for procrastinators, and they’re the people who aren’t saving enough.  So the “deadweight loss” of the nudge is small: it doesn’t bother people who don’t need it.  But it’s not so clear how we tell this story about externalities.  Are procrastinators more likely to emit greenhouse gasses? 

This is a pretty narrow way of thinking about the efficiency of nudges.  There is no secret formula for policy evaluation; we know how to mix up a good batch of regulation.  Environmental economists compare taxes to “command and control” alternatives; crim. law scholars compare fines to prison and shaming.  We can infuse this same analysis into the NYC debate, or analysis of any old nudge.  Or, maybe not quite the same old classic analysis--maybe more of a New Coke flavor.  I’ll say more about that tomorrow.     

Faculty Lounge-Prawfs Happy Hour

Come fight the jet lag with us tonight at the Law & Society annual meeting. We'll be gathering at the Tapa Bar at 9:00 p.m.  Laura Appleman and I will be representing our virtual institutions. Hope to see you there!

The Shadow Crim Conference at Law and Society, Hawaii 2012

Next week is Law and Society in Hawaii. Aloha! Though I won't in the end be going, sadly, I wanted to share with readers information about the crimprof shadow conference that Carissa Hessick and I organized. There will be a happy hour for crimprofs at 5pm next Wednesday (June 6) in the Paradise Lounge at the Martini Bar.  This will be a happy hour primarily for folks attending the crimprof shadow conference, but all are welcome. (A more general happy hour is in the works. Keep an eye on the blog.)

You can find below the information from the LSA program re: our little gathering on crim law and crim procedure.

LSA Criminal Justice Shadow Conference Schedule

 

Criminal Justice 01: The Evolution and Transformation of Criminal Justice Institutions

Time: Tue, Jun 5 - 10:15am - 12:00pm

Place: HHV, TBA20

Session Participants:

Chair: Meghan J. Ryan (Southern Methodist University)

140 Character Assassination

*Leslie Y Garfield (Pace University)

Regulatory Equilibrium and Destabilization in Criminal Procedure

*Anthony O'Rourke (SUNY, Buffalo)

Science and the New Rehabilitation

*Meghan J. Ryan (Southern Methodist University)

The Institutionalizing Effect of Criminalization: A Case Study of American Prostitution

*Aaron Simowitz (New York University)

Discussant: Audrey Rogers (Pace University)

 

Criminal Justice 02: Policing, Protest, and Punishment 

Time: Tue, Jun 5 - 2:30pm - 4:15pm

Place: HHV, TBA20

Session Participants:

Chair: Wayne Logan (Florida State University)

Prisoners' Constitutional Right of Protest

*Andrea C. Armstrong (Loyola University, New Orleans)

Policing Identity

*Wayne Logan (Florida State University)

Guilt and the Fourth Amendment

*Laurent Sacharoff (University of Arkansas)

Judicial Response or Litigant Strategy: Examining the Success of the U.S. Solicitor General

*Jeff Yates (Binghamton University)

Discussant: Susan A. Bandes (University of Miami)

 

Criminal Justice 03: Sex, Crime, and Punishment

Time: Wed, Jun 6 - 8:15am - 10:00am

Place: HHV, TBA20

Session Participants:

Chair: Carissa B. Hessick (Arizona State University)

The Law and Paraphilias

*Melissa Hamilton (University of South Carolina)

Child Pornography 2.0

*Carissa B. Hessick (Arizona State University)

Institutional Interference with the Criminal Prosecution of Child Abuse

*Ruth Jones (University of the Pacific)

The Trans Panic Defense

*Cynthia K. Lee (George Washington University)

 

Criminal Justice 04: Topics in the Theory of Crime and Punishment

Time: Thu, Jun 7 - 8:15am - 10:00am

Place: HHV, TBA20

Session Participants:

Chair: Kimberly Ferzan (Rutgers University, Camden)

The Meaning of Consent

*Vera Bergelson (Rutgers University)

State Labelling, the European Convention on Human Rights and the Presumption of Innocence

*Liz Campbell (U of Aberdeen/U of Maryland)

Assessing the Reach of the Presumption of Innocence

*Kimberly Ferzan (Rutgers University, Camden)

Justice and Mercy

*David Gray (University of Maryland)

Discussant: Susan D. Rozelle (Stetson University)

 

Criminal Justice 05: Issues in Pre-Trial Procedure

Time: Thu, Jun 7 - 10:15am - 12:00pm

Place: HHV, TBA20

Session Participants:

Chair: Laura Appleman (Willamette University)

Justice in the Shadowlands: Bail, Jail, and Extralegal Punishment

*Laura Appleman (Willamette University)

Race and Prediction

*Shima Baradaran (Brigham Young University)

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

*Brian Gallini (University of Arkansas)

The Expressive Purpose of Corporate Criminal Liability

*Gregory Gilchrist (University of Toledo)

 

Criminal Justice 06: Searches, Evidence, and Privacy

Time: Thu, Jun 7 - 2:30pm - 4:15pm

Place: HHV, TBA20

 Session Participants:

Chair: Fabio Arcila (Touro Law Center)

Seven Theses in Grudging Defense of the Exclusionary Rule

*Lawrence E. Rosenthal (Chapman University)

 The Role of Age and a Minor's Consent to Search under the Fourth Amendment

*Megan Annitto (West Virginia University)

GPS Tracking into Fourth Amendment Dead Ends: The Katz Conundrum

*Fabio Arcila (Touro Law Center)

 Searches, Evidence, and Privacy

*Ellen Marrus (University of Houston)

 

Criminal Justice 07: Right to Counsel

Time: Thu, Jun 7 - 4:30pm - 6:15pm

Place: HHV, TBA20

 Session Participants:

Chair: Stewart M Young (University of Wyoming)

Padilla’s Two-Tiered Duty is Strickland-Lite for Noncitizens

*Cesar C Garcia Hernandez (Capital University)

Why the Supreme Court Will Not Take the Pre-Trial Right to Counsel Seriously

*Arnold Loewy (Texas Tech University)

Reconciling Right to Counsel Jurisprudence with the “Infinite Habeas” Dilemma

*Emily Uhrig (University of the Pacific)

Agents and Prosecutors and Judges, Oh My! Operational Controls for Proactive Criminal Investigations

*Stewart M Young (University of Wyoming)

 

Criminal Justice 08: Adjudication and Beyond

Time: Fri, Jun 8 - 10:15am - 12:00pm

Place: HHV, TBA20

Session Participants:

Chair: William W Berry (University of Mississippi)

Ending the Failure of Finality by Federalism

*William W Berry (University of Mississippi)

Beyond the Civil-Criminal Binary: Contempt of Court and Judicial Governance

*Nirej Sekhon (Georgia State University)

Using "Crimmigration" as a Mechanism of Social Control against Latinos

*Yolanda Vazquez (University of Pennsylvania)

Discussant: Meghan J. Ryan (Southern Methodist University)

 

Criminal Justice 09: Criminal Law Stories

Time: Fri, Jun 8 - 2:30pm - 4:15pm

Place: HHV, TBA20

 Session Participants:

Chair: Donna Coker (University of Miami)

The Story of Wanrow: Reasonableness, Gender, and Self-Defense

*Donna Coker (University of Miami)

Accomplice Liability and the Murderous Judge

*Leo Katz (University of Pennsylvania)

Robinson v. California: From a Revolutionary Constitutional Doctrine to a Modest Ban on Status Crimes

*Erik Luna (Washington and Lee University)

The Story of Berry: When Hot Blood Cools

*Susan D. Rozelle (Stetson University)

Discussant: Mario L. Barnes (University of California, Irvine)

 

 

 

 

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.

AALS and Fed Soc Conferences

As mentioned before, we'll be hosting, along with our friends at Co-Op and the Faculty Lounge, among others, our annual AALS happy hour. In the next day or so, we'll have nailed down the details of where it will be, but for now please mark your calendars for Thursday January 5th from 9pm-midnite.  Thanks to our friends at Drexel University Earle Mack School of Law, and in recognition of its recent accreditation, the bar tab will be covered to some substantial extent! More details on that to follow too.

Speaking of the happy hour, those of you keen to buy a hard copy of my wife's new novel, This Is Our Story, can do so there. Wendi Adelson will be there at least for the first hour to sign copies. You can of course download the book on your Kindle already.

Finally, I want to mention that in addition to the AALS monster conference at the Mariott, the Federalist Society will be hosting its annual shadow conference over at the Omni Shoreham next door. In what must have been some sort of a mixup, a forthcoming paper of mine was selected as one of the winners of the Young Legal Scholars Paper Competition so I'll be talking about crime, punishment, democracy blah blah blah for a few minutes. Poor Eugene Volokh is tasked with commenting on this albatross on Friday morning, as well as William Baude's paper on Beyond DOMA. Also on that day, some other notorious conservatives from the Prawf-o-sphere, Steve Vladeck and Joe Slater, will be speaking. You can find out more about the conference, and register for free over here. Hope to see you there (or in DC more generally).

Happy Hour at SEALS Law Conference, Thurs July 28th at 9pm

For those of you conferencing in Hilton Head for the SEALS meeting later this month, please mark your calendar for Thursday the 28th of July at 9pm. We will gather for a happy hour at the Lobby Lounge of the Marriott Oceanfront Resort.

Btw, if there are any seasoned experts on Hilton Head among our readers, please feel free to weigh in with some suggestions in the comments of restaurants and bars or other sites we should visit while out there. If there are some places close-by, perhaps we'll have some other happy hours planned. In the meantime, please share the date, time, and location of this happy hour with your peeps.

The CrimProf Shadow Conference Next Week at Law and Society in San Fran

For those of you attending LSA next week,  or if you're in SF nonetheless, please note that below the fold is information regarding the 10 panels making up the "crimprof" shadow conference. All are welcome to attend the panels on criminal justice or the happy hour.

Colleagues,

In anticipation of next week's 3d annual Shadow CrimProf Gathering at the Law and Society meeting in San Fran, I'm both attaching  and pasting below the information regarding the ten panels we (Miriam Baer and I) have slated. You'll notice that our panels begin with "Criminal Justice 01, 02, etc"

As I understand it, all ten of our panels will be held in the same room, which is very convenient. Unfortunately, the preliminary program doesn't say what room that is in but once I know what it is next week, I'll share it here on the listserve and on Prawfs.com

Presenters on these panels are sharing their drafts with the others on their panels, hopefully by today (I say shame-facedly and foot-draggingly). However, if you see a paper not on your panel that you'd like to read in advance of the presentation (or perhaps, perish the thought, you won't be able to make the presentation because of some conflict), then please reach out and email that person--I'm almost certain that people are excited to get feedback on these works in progress.

Last, Miriam Baer and I invite you all to join us at the Clock Bar around 9pm on Friday evening in the St. Francis Westin hotel for drinks and company. Please feel free to let either of us know in advance if you and others may be coming. All are welcome.

See you next week, and below is the schedule:

Criminal Justice 01: Topics in Substantive Criminal Law 1210

Keyword Area CRIME AND VICTIMS Schedule Information: Scheduled Time: Thu, Jun 2 - 10:15am - 12:00pm  Building/Room: St. Francis or Nikko, TBA 10 Title Displayed in Event Calendar: Criminal Justice 01: Topics in Substantive Criminal Law 1210 Session Participants: Chair: Ruth Jones (University of the Pacific) [email protected] Sex, Drugs, and Cyberbullies: Reflections on Parenting, Policing, and Schooling *Deborah Ahrens (Seattle University) The Choice of Evils *Vera Bergelson (Rutgers University, Newark) From Coverture to Conspiracy and Back Again: Women, Crime, and Coercion *Mary Anne Franks (University of Miami) Reinvigorating Actus Reus: The Case for Involuntary Actions by Veterans with Post-Traumatic Stress Disorder *Melissa Hamilton (University of South Carolina) Abstract: The panel will discuss various issues of substantive criminal law, including the following presentations: 1. Melissa Hamilton, Reinvigorating Actus Reus: The Case for Involuntary Actions by Veterans with Post-Traumatic Stress Disorder;  2. Mary Anne Franks: From Coverture to Conspiracy and Back Again: Women, Coercion, and Crime; 3. Vera Bergelson, The Choice of Evils; and 4. Deb Ahrens, Sex, Drugs, and Cyberbullies: Reflections on Schooling, Parenting, and Policing.

Criminal Justice 02: Institutional and Theoretical Issues in Punishment 1310

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Sponsor: Keyword Area CRIME AND VICTIMS Schedule Information: Scheduled Time: Thu, Jun 2 - 12:30pm - 2:15pm  Building/Room: St. Francis or Nikko, TBA 10 Title Displayed in Event Calendar: Criminal Justice 02: Institutional and Theoretical Issues in Punishment 1310 Session Participants: Chair: Dan Markel (Florida State University) [email protected] Punishing Corporate Governance *Miriam Baer (Brooklyn Law School) Cruel and Unusual Federal Punishments *Michael J.Z. Mannheimer (Northern Kentucky University) Retributive Justice: 4 Questions *Dan Markel (Florida State University) Total Retribution *Meghan J. Ryan (Southern Methodist University) Discussant: Richard H. McAdams (University of Chicago) [email protected]       Abstract: This panel will include a series of papers addressing the relationship between punishment and democracy, punishment and corporate governance, and punishment constitutionalism.

Criminal Justice 03: Criminal Procedure and Policing 1410

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Sponsor: Keyword Area CRIME AND VICTIMS Schedule Information: Scheduled Time: Thu, Jun 2 - 2:30pm - 4:15pm  Building/Room: St. Francis or Nikko, TBA 10 Title Displayed in Event Calendar: Criminal Justice 03: Criminal Procedure and Policing 1410 Session Participants: Chair/Discussant: Fabio Arcila Jr. (Touro College) [email protected] A Spectacular Non Sequitur *David Gray (University of Maryland) Reasonableness with Teeth: The Future of Fourth Amendment Reasonableness Analysis *Cynthia K Lee (George Washington University) Interrogation and the Roberts Court: Rules for "Fair Play," Not Protecting Vulnerable Suspects *Jonathan Witmer-Rich (Cleveland State University) Abstract: Among the Fourth Amendment’s core concerns is the relationship between the public and police. Increasingly, that relationship has been subjected to reasonableness analysis. Though once predominant in the civil search context, increasingly reasonableness analysis has been moving into the criminal search and seizure context as well. This development has caused great concern among many commentators, as a move toward reasonableness has the potential for undermining traditional Fourth Amendment threshold protections. This panel will explore the implications of this move toward Fourth Amendment reasonableness, asking questions such as whether adequate protections of Fourth Amendment interests can exist under a reasonableness framework, and how Fourth Amendment doctrine should respond to reasonable mistakes. Also to be considered are the related issues of the exclusionary rule and modern developments under the Roberts Court in the law of police interrogation.

 

Criminal Justice 04: Searches and Privacy 2110

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Sponsor: Keyword Area POLICING AND PUNISHMENT Schedule Information: Scheduled Time: Fri, Jun 3 - 8:15am - 10:00am  Building/Room: St. Francis or Nikko, TBA 10 Title Displayed in Event Calendar: Criminal Justice 04: Searches and Privacy 2110 Session Participants: Chair: Josephine Ross (Howard University) [email protected] Crime Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World *Jeffrey Bellin (Southern Methodist University) A Parent's "Apparent" Authority *Hillary B. Farber (Northeastern University) Privacy in the Workplace: City of Ontario v Quon *Clifford S Fishman (Catholic University of America) Consent-To-Search and Dignity *Josephine Ross (Howard University) Abstract: This country is at a crossroads regarding privacy. Although the Fourth Amendment places limits on the ability of police to stop individuals and search them and their possessions, these rights are being eroded from a number of different angles. This session will discuss four of the ways that privacy is challenged, including the ever-expanding use of technology that tests long-standing substantive Fourth Amendment doctrine, the rules allowing the government to investigate its employees, the consent doctrine that allows police to search without any reason to believe the individual is in possession of something illicit, and the apparent authority doctrine that allows parents to consent to searches of their children even when these young individuals would not willingly give up their privacy. In many situations, it is the more vulnerable among us who are most likely to be expected to submit to pat-downs or full blown searches. We will offer an array of fixes to these conundrums and promise a lively debate.

 

Criminal Justice 05: Constitutional Issues in Criminal Procedure 2210

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Sponsor: Keyword Area CONSTITUTIONAL LAW AND CONSTITUTIONALISM Schedule Information: Scheduled Time: Fri, Jun 3 - 10:15am - 12:00pm  Building/Room: St. Francis or Nikko, TBA 10 Title Displayed in Event Calendar: Criminal Justice 05: Constitutional Issues in Criminal Procedure 2210 Session Participants: Chair: William W. Berry III (University of Mississippi) [email protected] Criminal Constitutional Avoidance *William W. Berry III (University of Mississippi) Graham on the Ground *Cara H Drinan (Catholic University of America) The Sounds of Silence *Erik Lillquist (Seton Hall University) Abstract: This panel investigates several different issues related to the constitutionality of various aspects of criminal procedure.

Criminal Justice 06: Privacy and Security 2410

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Sponsor: Keyword Area CRIME AND VICTIMS Schedule Information: Scheduled Time: Fri, Jun 3 - 2:30pm - 4:15pm  Building/Room: St. Francis or Nikko, TBA 10 Title Displayed in Event Calendar: Criminal Justice 06: Privacy and Security 2410 Session Participants: Chair: Fabio Arcila Jr. (Touro College) [email protected] Binary Searches and the Central Meaning of the Fourth Amendment (download) *Lawrence Rosenthal (Chapman University) Guantanamo And Domestic Criminal Justice *Nirej Sekhon (Georgia State University) Indecent Exposure: How Private is a Student's Cell Phone? *Amy Vorenberg (University of New Hampshire) From Trade Secret Thief to Julius Rosenberg: How Government Bailouts May Affect the Concept of Industrial Espionage *Robert E Wagner (Case Western Reserve University) Abstract: Panel will address issues at the intersections of criminal justice and public/private security: Larry Rosenthal, 4A and Dogs and Privacy Nirej Sekhon, Crime, Community, and Terror Amy Vorenberg, TBA Rober Wagner, Frome Trade Secret Thief to Julius Rosenberg: How Government Bailourts May Affect the Concept of Industrial Espionage

 

Criminal Justice 07: Perspectives on Prosecutors and Defense Attorneys 2510
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Sponsor: Keyword Area CRIME AND VICTIMS Schedule Information: Scheduled Time: Fri, Jun 3 - 4:30pm - 6:15pm  Building/Room: St. Francis or Nikko, TBA 10 Title Displayed in Event Calendar: Criminal Justice 07: Perspectives on Prosecutors and Defense Attorneys 2510 Session Participants: Chair: Barbara O'Brien (Michigan State University) [email protected] Becoming a Prosecutor: How Prosecutors Grow into Their Professional Roles *Kay Levine (Emory University), Ron Wright (Wake Forest University) Collective Bargaining, Constitutional Rights, and Criminal Defense *Pamela R Metzger (Tulane University) Ready to Listen: The North Carolina General Assembly’s Decision to Go Where the McCleskey Court Wouldn’t *Barbara O'Brien (Michigan State University), Catherine M Grosso (Michigan State University) Discussant: Shima Baradaran (Brigham Young University) [email protected]       Abstract: This panel will focus on research examining the roles of prosecutors and defense attorneys in the adversarial process. The papers will look at different aspects of the process, including prosecutorial charging decisions, the role of defense counsel in the pre- and post-adversarial stages, and the culture of prosecutors’ offices in shaping norms and practices. For instance, one paper will critically examine the Supreme Court’s recent cases regarding the right to counsel under the Sixth Amendment, while another looks at the possibility of defense attorneys bargaining collectively. A third paper will discuss institutional culture and norms that shape prosecutorial decision making based on interviews with state prosecutors in North Carolina and Georgia. A final paper examines the political and cultural context that facilitated a substantial legislative shift in North Carolina as to how courts are to review prosecutorial and jury decision making in death penalty cases.
Criminal Justice 08: Adjudication and Trial 3210

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Keyword Area COURTS AND TRIALS

Schedule Information:

Scheduled Time: Sat, Jun 4 - 10:15am - 12:00pm  Building/Room: St. Francis or Nikko, TBA 10 Title Displayed in Event Calendar: Criminal Justice 08: Adjudication and Trial 3210

Session Participants:

Chair: Caren M Morrison (Georgia State University) [email protected] Saving Face(book): How Social Networking During Voir Dire Will Eviscerate What's Left of Batson *Caren M Morrison (Georgia State University) Defending the Indefensible: Why Society Should Protect Snitches *Michael L Rich (Elon University) Juror Privacy *Melanie D. Wilson (University of Kansas)

Abstract:

The panelists will discuss works in progress primarily focusing on privacy and security of lay participants in the criminal justice system, in particular jurors and confidential informants. The panel will also consider the role of defense counsel in the civil law system. The presenters and papers are as follows: 1. Shawn Marie Boyne: "Paper Tigers?: The Role of Criminal Defense Attorneys in Civil Law Systems" 2. Thomas Cohen, "Who’s Better at Defending Criminals? Does Type of Defense Attorney Matter in Terms of Producing Favorable Case Outcomes" 3. Melanie Wilson: "Protecting Jurors' Privacy."  4. Caren Morrison: "Saving Face(book): How Social Networking During Voir Dire Will Eviscerate What's Left of Batson." 5. Michael Rich, "In Defense of the Indefensible: Why and How the Law Should Protect Snitches."

 

Criminal Justice 09 Roundtable--Most Deserving of Death? An Analysis of the Supreme Court's Death Penalty Jurisprudence 3410

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Sponsor: Keyword Area JUSTICE Schedule Information: Scheduled Time: Sat, Jun 4 - 2:30pm - 4:15pm  Building/Room: St. Francis or Nikko, TBA 10 Title Displayed in Event Calendar: Criminal Justice 09 Roundtable--Most Deserving of Death? An Analysis of the Supreme Court's Death Penalty Jurisprudence 3410 Session Participants: Chair: Kenneth Williams (South Texas College of Law) [email protected] Participant: Susan Rozelle (Stetson University) [email protected] Participant: Laurent Sacharoff (University of Arkansas) [email protected] Participant: Andrew Taslitz (Howard University) [email protected] Abstract: The death penalty continues to be one of the most divisive issues in the United States. Past disputes, such as slavery and racial segregation, have been largely resolved. Yet, the debate over capital punishment persists. Proponents and opponents of capital punishment disagree about whether it is just, whether it deters, whether it is racist and just about every other issue associated with the death penalty. Both sides, however, seem to have reached a consensus about one thing: the system is broken. How did we end up with a system that both supporters and opponents of the death penalty would agree has become dysfunctional on all levels? The author places the blame primarily on the United States Supreme Court through an analysis of its death penalty jurisprudence.

Criminal Justice 10 Roundtable--An Investigation of Empirical Desert 3510

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Sponsor: Keyword Area CRIME AND VICTIMS Schedule Information: Scheduled Time: Sat, Jun 4 - 4:30pm - 6:15pm  Building/Room: St. Francis or Nikko, TBA 10 Title Displayed in Event Calendar: Criminal Justice 10 Roundtable--An Investigation of Empirical Desert 3510 Session Participants: Chair: Christopher Slobogin (Vanderbilt University) [email protected] Participant: Lauren Brinkley-Rubinstein (Vanderbilt University) [email protected] Participant: John Darley (Princeton University) [email protected] Participant: Dena Gromet (University of Pennsylvania) [email protected] Participant: Tom Tyler (New York University) [email protected] Abstract: The central contention of empirical desert is that adherence to societal views of “justice” will not only satisfy retributive urges but will also be as efficacious at controlling crime as a system that straightforwardly revolves around utilitarian purposes of punishment, because it will enhance the moral credibility of the law and therefore enhance compliance with it (Robinson, 2010). This roundtable will discuss data testing hypotheses that raise vulnerabilities in this argument, and offers insights from procedural justice, cognitive bias, and neurological perspectives.

 

 

Prawfsfest! 8 is coming to ASU!

It's December, which means that a couple handfuls of P-festers will be gathering soon in a warm climate, this time at Arizona State University's Sandra Day O'Connor College of Law. This will be the 8th time Prawfs will be hitting the road--we began back in 2006 at the University of Miami and, with that toxic concoction of sleep deprivation and age, I can no longer recall all the places we've done our traveling roadshow. If you think your school might be interested in hosting at some point in the future, please let me know. We use a shared cost structure, so the host institution doesn't usually need to shell out more than 3K or so.

For the upcoming P-fest next week in Phoenix, I want to extend special thanks to our hosts, Zak Kramer, Carissa Byrne Hessick and Andy Hessick, and their wise and generous deans: Paul Schiff Berman and Doug Sylvester. All three will be presenting early works in progress, along with Mary Anne Franks (UMiami); Aaron Bruhl (UH); Jack Chin (UArizona); Miriam Baer (Brooklyn); Paul Horwitz (UAlab); and myself. Pitching in as designated discussant, the inimitable Dave Fagundes (SW). Should be lots of fun. If you have recommendations for what we should do or where we should eat/drink while we're there, please leave your favorite rec's in the comments. 

LSA Happy Hour, Thursday May 27th @9pm. Bar Novo @Renaissance Hotel.

N.B. This has been bumped up to the front.

Just to follow up on the post from last week, we will be having one of our happy hours with friends from other blogs and law schools  TONIGHT in Chicago. The fun starts at 9pm at Bar Novo, which is conveniently located in the Renaissance Hotel, the host site for the Law and Society Conference. In years past, people typically stay through midnight or so; if you can't make it right away b/c of the reception or dinner plans, I hope you'll swing by later.

The managers at Bar Novo have arranged some food and drink specials in honor of the gathering. There should be some 4$ beers, reasonably priced good wines, signature cocktails, and 5$ flatbreads/tapas. Feel free to bring others and please do share the info with your colleagues and friends. Over here, you can find a map and contact info. No RSVP required, though feel free to drop a line to give me a heads up if you can make it. Cheers!

On Caffeine

Hi all.  It’s great to be back on (or near) the glorious fifth anniversary of Prawfs’ entrée into the blawgosphere.  I’ve just gotten back to SoCal from Michigan, where I participated in the Junior Scholars in IP Workshop at MSU (which was an outstanding conference—mad props to organizers Adam Candeub, Sean Pager, and Rob Heverly) and then visited some friends in Ann Arbor who teach at the University of Michigan.  It was a fun trip, but a little challenging in terms of schedule. Michigan is on Eastern Time, which kind of wrecked my body clock, and as a result I found myself chugging caffeinated beverages pretty much nonstop in order to maintain max alertness.

This isn’t really too different from my daily life, which typically involves some constant intake of caffeine whether working or at leisure.  If I were constantly ingesting any other drug, it would be clear cause for concern, but caffeine is so normalized (and relatively harmless when compared to other drugs, obviously) that I’ve grown to accept it as a background feature of my life.  From time to time though, I wonder about this.  Should I cut down on caffeine for health or other reasons?  Is it a problem that I find myself at my most productive when caffeinated?  Do other lawprofs have the same love-hate relationship with caffeine that I do? 

I answer these questions, and offer more thoughts about my favorite performance-enhancing drug below the fold.

Little needs to be said about the merits of wonderful caffeine.  It soothes me, it refreshes my soul.  It gives me energy when I’m feeling run down.  It is a particularly good match for me because I’m a high-energy person to begin with, so caffeine enhances my natural state (admittedly, some might not think this so wonderful).  For writing, it focuses the attention and sharpens the mind.  For teaching, I’ve found it to be a virtually indispensible aid, at least when used in moderation.  Two consecutive hours of property (or three consecutive hours of copyright, which I did last semester) can be a long time to maintain focus and concentration, and having a caffeine boost has proven enormously helpful to me in this maintenance.

But caffeine is, after all, a drug.  It may not be scheduled by the Controlled Substances Act, but it has many of the same psychoactive qualities as much more dangerous and addictive stimulants such as cocaine or methamphetamine (though caffeine’s impact is much weaker).  Its diuretic effects can strain the kidneys and weaken the bones (by leaching nutrients at a faster-than-optimal rate), and the vehicles that deliver it (Diet Coke especially) can include all manner of bad-for-you and even carcinogenic chemicals.  And having just finished lauding the pro-writing and –teaching properties of caffeine, the big caveat (for me, at least) is that in excess quantities, caffeine can be counterproductive to both endeavors.  If I drink too much tea, I may find myself too jittery to concentrate for long stretches of writing at the keyboard.  And if I overimbibe in class, I can find myself rushing through material and speaking too fast. 

So if there’s an insight here (big “if”), it may be that the virtues of caffeine are found, like most things, in moderation.

Finally, my above reference to caffeine as a performance-enhancing drug is kind of a joke, but only kind of.  Caffeine can increase one’s performance in mental and physical tasks, at least in certain settings and as long as you don’t consume too much (e.g., I once chugged a massive coffee right before a 90-minute crim midterm and ended up losing 10min of exam time when I had to sprint down the hall mid-test to a distantly located bathroom).  But as a practical matter, the effects are probably pretty marginal, because caffeine doesn’t really make that much of a psychoactive impact, and because it’s available to everyone (though maybe Mormons would have a beef).

But it’s certainly possible to imagine other PEDs in an academic setting that might create more concern.  There was a New Yorker piece a couple years back discussing the effects of drugs like Adderall and Provigil on concentration and test performance.  It’s not hard to imagine a drug that could help enhance long-term concentration, or even creativity of thought.  Imagine that a law professor went from writing pedestrian stuff to publishing groundbreaking work thanks to newfangled pharmaceuticals.  Is this a problem?  I know I wouldn’t object to it in other professions.  If surgeons could do a better job operating thanks to narcotics, or if medical researchers could find a cure for cancer more quickly by ingesting concentration- or thought-enhancing drugs, then pill-pop away, docs! 

And with that half-facetious provocation at a blessed end, I will bring this introductory guest-blogpost to a close.  The late afternoon approaches;  I need some coffee.

LSA, etc

Greetings from glorious Denver. Today was the first day (at least in earnest) of the Law and Society conference.  As I think I mentioned earlier, Alice Ristroph and I used the LSA organizational structure to create a mini crim law conference for about 30 people and 8 panels. The first half of those panels was today and the second half is tomorrow (Friday).  On the punishment theory panel today, we had really interesting papers by John Bronsteen (Happiness and Punishment, with co-authors Masur and Buccafusco), Don Braman (Some Realism about Naturalism, with co-authors Dan Kahan and Dave Hoffman; Don's powerpoint presentation was both effective and hilarious--make sure you invite him to your school for this presentation), Mark D. White (In Consideration of Consequentialist Retributivism), and a less interesting and more inchoate set of remarks by me (Bentham on Stilts? On the Bare Relevance of Subjectivity to Retributivism, co-written with Chad Flanders).  It was definitely one of the best panels I've been on in the last four years, with a really good synergy and engagement by the panelists with each other and with an outstanding set of questions from a great audience at LSA. Every aspect of it was better than I could have hoped for, and I'm grateful to the other panelists and the audience for their thoughtful remarks and participation.

Tomorrow morning, bright and early at 815am, my co-author Jennifer Collins and I will be participating in a "Author Meets Readers" roundtables for our book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties.  Tommy Crocker will be chairing the panel, which includes a great group of commentators: Melissa Murray, Don Braman, Naomi Cahn, and last but not least, the incomparable Alice Ristroph. If you're in Denver, we'd love to have you join the conversation. 

Last, if you're in Denver for the few days, make sure you try the great restaurant our panel dined at tonight: Rioja.  The tuna main course and the goat cheese calzone were delish! Thanks to Sam Kamin for the local Denver recon. 

Kosher food at AALS

One of our readers has asked me to post an inquiry into whether there are any attendees at next week's AALS conference in San Diego who would like to have kosher food available over the duration of the conference. If so, please leave a comment on this thread or get in touch with Hillel Levin (UGA), and there will be some efforts to coordinate through one of the kosher caterers or restaurants there. Thanks.