Archive for April, 2008

Computers, Freedom, and Privacy

posted by Frank Pasquale

I just wanted to announce that the preliminary program for the 2008 Computers, Freedom, and Privacy Conference (in New Haven, CT) has been announced. The theme this year is “Technology Policy ’08,” and it includes several topical panels for the election year:

Presidential Technology Policy: Priorities for the Next Executive

States as Incubators of Change

Activism and Education Using Social Networks

Network Neutrality: Beyond the Slogans

Discounted early bird registration closes this Friday, but general registration is open until 5/23. The conference is also looking for bloggers!

April 30, 2008 at 5:54 pm Posted in: Anonymity, Conferences, Privacy Print This Post No Comments

Context for the Voter ID Case: Machines Old and New

posted by Frank Pasquale

Having written compellingly on the topic, Rick Hasen has a good roundup of materials on the recent Voter ID case decision. John Fund (via Jonathan Adler at the VC) suggests that Justice Stevens’s experience with the Daly machine may have led him to be sympathetic to fraud-prevention measures. It strikes me that more recent history provides just as (or perhaps more) relevant context for deciding the case. Consider this excerpt from Steven Rosenfeld’s essay in the book Loser Take All:

The Brennan Center for Justice at New York University Law School has found that 25% of adult African-Americans, 15% of adults earning below $35,000 annually, and 18% of seniors over sixty-five do not possess government-issued photo ID. . . .

Jim Crow has returned to American elections, only in the twenty-first century, instead of men in white robes or a barrel-chested sheriff menacingly patrolling voting precincts, we are more likely to see a lawyer carrying a folder filled with briefing papers and proposed legislation about “voter fraud” and other measures to supposedly protect the sanctity of the vote. . . .

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April 30, 2008 at 4:36 pm Posted in: Constitutional Law Print This Post No Comments

What is Comparative Constitutional Law?

posted by David Fontana

Much of my blogging this next month will be about the field of comparative constitutional law. What is the field? What projects are people working on in the field? What does it matter?

For now, though, I wanted to write one brief thought that has occurred to me as I have taught my comparative constitutional law class at GW the past two spring semesters: Is comparative constitutional law just an example of constitutional theory or constitutional design?

Some parts of comparative constitutional scholarship help us understand a particular country more, perhaps. So, if you have something interesting to say about the German Basic Law, that might help us understand Germany a little more than we did previously. This is particularly so if perhaps we compare the German Basic Law and the American Constitution, assess their differences, and through this assessment we gain a better understanding of both countries.

But part of what comparing constitutions does is force us to ask first-order questions about constitutions–what they are and what they should do. If one country uses abstract review, and one country uses concrete review, we can compare their experiences, and see how different systems of judicial review operate, which countries each system works best for, and so on. This is partly about comparing countries, but just as much it is about having more data points about how different constitutional regimes work. There is nothing necessarily “comparative” about this–perhaps, then, there is just something more systematic about it than other forms of scholarship, and that might be what comparative constitutional law can contribute to constitutional scholarship–a more empirically informed version of answering some of the same questions.

April 30, 2008 at 1:46 pm Posted in: Uncategorized Print This Post 6 Comments

The Yale Law Journal Pocket Part: How “Swingers” Might Save Hollywood from a Federal Pornography Statute

posted by Yale Law Journal

“Section 2257 of title 18 of the U.S. Code requires that ‘producers’ of photographs and films of ‘actual sexually explicit conduct’ create and maintain records documenting the age of the performers depicted in those performances. The statute’s purpose is to ensure that the performers are not minors. This recordkeeping statute has generally been limited to the adult film industry, although recently the statute’s impact has crept into the realm of mainstream film and television. For over two decades, the statute has withstood numerous constitutional challenges by the adult film industry and civil libertarian organizations. On October 23, 2007, however, the U.S. Court of Appeals for the Sixth Circuit held that § 2257 was overbroad on its face and therefore unconstitutional.”

This week The Pocket Part takes a look at how this case, recently vacated for rehearing, could impact the free speech claims of the adult and mainstream entertainment industry in addition to the constitutional rights of individual adults that engage in private conduct implicated by the record keeping requirement of § 2257.

April 30, 2008 at 1:09 pm Posted in: Law Rev (Yale), Law Rev Forum Print This Post One Comment

Science, Math, and the Essence of All Things

posted by Deven Desai

Last week Thomas Jefferson had Professor James Hackney of Northeastern University School of Law as our last speaker in our colloquium series. His talk focused on his book, Under Cover of Science: American Legal-Economic Theory and the Quest for Objectivity (featured at this past year’s AALS conference) and about his next steps on this topic. The book traces the way that science lurks behind the law and how law and economics has used the appearance of a scientific approach to justify its claims on jurisprudence. As the book’s site puts it “Hackney demonstrates how legal-economic thought has been affected by the prevailing philosophical ideas about objectivity, which have in turn evolved in response to groundbreaking scientific discoveries.” Now Science News reports that the June issue of the European Mathematical Society Newsletter has a debate over whether “new mathematical truths discovered or invented?” (annoyingly, the link to the Newsletter does not have the recent issue available as yet)

According to ScienceNews, one of the participants, Rueben Hersh of the University of New Mexico, “rejects the Platonic view, arguing instead that mathematics is a product of human culture, not fundamentally different from other human creations like music or law or money.” So as Hackney’s work makes a case that law and economics is not as objective as it seems, this group of articles about math suggests that even the science (or here related math) that provides the cover Hackney describes, lacks the objectivity it claims. The recent work on governance by Robert Ahdieh, Orly Lobel, and Mike Madison among others may be a response to the idea that law is not so objective. Rather it may be that the law seeks objectivity but faces complex and less than ideal situations. Governance ideas may fill that gap. We shall see.

Image: Title page of the second edition of Nicolaus Copernicus’ De revolutionibus orbium coelestium, printed 1566

Source: WikiCommons

License: Public Domain

cross-posted at Madisonian

April 30, 2008 at 12:08 pm Posted in: Jurisprudence Print This Post 9 Comments

Welcome Guest Blogger William Birdthistle

posted by Dave Hoffman

I’m pleased to welcome William Birdthistle, of Chicago-Kent, as a guest-blogger this month.

William is an assistant professor in his second year at Chicago-Kent, where he teaches Business Organizations, Securities Regulation, and International Business Transactions. His primary research interest is in collective investment vehicles, such as mutual funds, exchange-traded funds, private equity funds, and hedge funds. Previously, he spent several years practicing at Ropes & Gray in Boston, where he was a corporate associate in their investment management division. He clerked for Judge Diarmuid O’Scannlain on the Ninth Circuit after receiving a bachelor’s degree from Duke University and a J.D. from Harvard Law School.

Aside from his academic pieces, which you can find here, William has also written book reviews and op-eds for the Wall Street Journal, Chicago Tribune, and Christian Science Monitor.

Selected Publications:

The Fortunes & Foibles of Exchange-Traded Funds, 33 Delaware Journal of Corporate Law (forthcoming 2008)

Football Most Foul, Green Bag 2d, Vol. 10, No. 2, pp. 159-172, Winter 2007

Compensating Power: An Analysis of Rents and Rewards in the Mutual Fund Industry, 80 Tulane Law Review 1401 (2006)

The Bejaysus Factory, Wall Street Journal, Dec. 13, 2002, at W1

April 30, 2008 at 9:29 am Posted in: Administrative Announcements Print This Post No Comments

Crawford and ID Creep

posted by William McGeveran

Thanks to the Concurring Opinions gang for inviting me back for another visit!

I will leave it to the likes of the incredible Rick Hasen and SCOTUSBlog’s Lyle Deniston — among many, many others — to talk about the important election law elements of Monday’s Supreme Court decision on voter identification in Crawford v. Marion County Election Board. But if you are a hammer everything is a nail, and if you are a privacy scholar every newspaper story is about privacy. And the privacy implications here are rather clear.

Quite appropriately, the case was briefed, argued, and decided on the basis of the burden that Indiana’s identification requirements placed (or didn’t place) on the right to vote. The seminal cases were Harper v. Virginia Board of Elections, which held the poll tax unconstitutional, and its progeny. Other key sources cited in the opinions included the Carter-Baker Commission report and two recent federal electoral reform statutes, the motor voter law and the Help America Vote Act. The burdens considered by both the lead opinion and the dissents were pragmatic ones, largely monetary cost and inconvenience.

What about privacy burdens?

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April 29, 2008 at 10:46 pm Posted in: Privacy, Supreme Court Print This Post 8 Comments

Remember Invisible Ink? How About Vanishing Ink?

posted by Deven Desai

CNET reports that PARC (formerly Xerox Parc) the folks who have had a large hand in “laser printing, distributed computing and Ethernet, the graphical user interface (GUI), object-oriented programming, and ubiquitous computing” have invented vanishing ink. For those interested in the environmental side of things, it seems that making ONE SHEET of paper requires “about 204,000 joules” or “about the same amount of power required to run a 60-watt light bulb for an hour.” Recycling the paper requires “about 114,000 joules.” Printing on either new or recycled paper takes about another 2,000 joules.

If PARC’s technology is successful, the ink fades out in 16 to 24 hours. One can then reuse the paper. If one wants to run the paper through the printer before the ink has vanished, the printer can erase it. Here’s the key: erasing and printing requires about 1,000 joules; so half the energy of printing in general. Using the vanishing ink to print on blank paper requires only 100 joules.

So think about the menus, memos, maps, etc. that we use and then discard or recycle depending on whether a recycle bin is available. Now the paper can be reused. The energy cost of using obtaining a usable, blank paper is incurred once. And if one waits to print, the energy cost is even less. There is, however, a possible catch here: “The paper and the printer will be a little bit more expensive than their conventional counterparts.” So what is a little bit? Who knows? Given how expensive printing is right now this whole thing could simply shift money from energy to toner.

Still there are some things about PARC’s development that make it interesting from a law and policy perspective as well. PARC’s success stories are famous in part because PARC was not so great at making money on them (that GUI you use is one of them). Still, Xerox’s committment to a think tank where people ponder the future and pursue basic science “to create ‘the architecture of information’” seems to have paid off. In its current incarnation (it is now a whooly owned subsidiary of Xerox), PARC seems to be a bit more focused on licensing and the like. Yet, it had tremendous success before that focus was in place. So are the incentives that are often offered to explain innovation really the full story? PARC’s history seems to be an example of a more realistic approach. The business managers at Xerox set up a place which fostered an increase in the number of possible innovations. In some cases, they capitalized on them and in some they did not.

Research purely directed at capitalizing on an invention is limited research. It can of course yield great returns. Still in the words of William Goldman, “Nobody knows anything.”

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April 29, 2008 at 12:25 pm Posted in: Intellectual Property, Technology Print This Post 6 Comments

Fantasy Authors, Tax Policy & Veil Piercing

posted by Dave Hoffman

Pat Rothfuss, author of the best-selling fantasy novel “The Name of the Wind,“ and an interviewee in my “Law and Hard Fantasy” series, has a post up on his blog ruminating about tax policy and incorporation.

Up until this year, I’ve always gotten money back because I’ve lived well below the poverty line. This year, I got to give them money. It was, as they say, more fun than getting kicked in the throat. Mostly.

Don’t get me wrong, I’m not against taxes. Everyone loves to bitch about them, but taxes pay for schools, and roads, and snowplows, and sewage treatment plants. My friends have a son who is autistic, and the government helps them by bringing in well-trained people.

These things are important. If that’s all my taxes went toward, I would pay them gladly. I would sing a song while writing out the check.

However, we all know that’s not the case.

So, under the advice of several wise people, I’ve decided to start a corporation. This is supposed to prevent the government from taking quite as big a bite out of my ass for next year’s taxes.

It doesn’t seem right, honestly. The corporation is just me: I own it. And this corporation (let’s call it Me-corp) will be employing me. That, apparently, is different from being actually self-employed. Sorry? What? How does that work?

I guess what it comes down to is that the government is really, really dumb. Dumb enough so that if I put on sock on one of my hands and use it as a puppet, it will be convinced that the puppet is actually paying the taxes, not me.

But I’m not above exploiting a loophole in the system. So all that remains is to figure out what to call this corporation. I having trouble picking a name. Names are important things, you know. They tell you a great deal about a… a corporation.

I’m not an expert in tax law, so I’ll leave discussion of the income-sheltering aspects of this structure to the experts, but I know something about corporate veil piercing. And I’ll just say that calling a corporation a “puppet” would seem to make it less likely that a court would consider it a bona fide entity for the purpose of shielding a shareholder’s personal assets in any suit against Me.corp.

April 29, 2008 at 10:02 am Posted in: Book Reviews, Culture, Tax Print This Post 2 Comments

Kevin Phillips on Money Politics

posted by Frank Pasquale

What explains the simultaneously record-low approval ratings of a President and the very-low approval ratings of a Congress controlled by his political enemies? One simple answer is that a party without 60 votes in the Senate does not actually control Congress, as this Lithwick piece on the filibuster of the Lilly Ledbetter Fair Pay Act makes clear. But Kevin Phillips’s new book Bad Money suggests a darker possibility:

Most office holders on both sides seem to rest easier if everyone stays away from uncomfortable themes, even ones in the headlines, like costly U.S. overreach in the Middle East; the reckless expansion of private debt, as well as the federal budget deficit variety; the new economic (and political) dominance of the financial sector; and the mounting probability that the nation will have to choose between desirable energy supplies and global warming measures. . . .

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April 29, 2008 at 9:03 am Posted in: Current Events Print This Post No Comments

Eagles Sue T.O.

posted by Dave Hoffman

The Philadelphia Eagles have sued Terrell Owens to force him to repay nearly $770,000 in bonus money that an arbitrator determined that he owes the team. I downloaded the complaint, given my long-standing interest in this particular contract dispute. Turns out, it looks like a relatively routine request to enforce an arbitration award, rendered in January 2008.

Still, the clerks for Judge Tucker must be hoping that there are enough unexpected and interesting legal issues in the suit to merit at least one appearance by T.O. in the courtroom. (I’d imagine that his sharpie maneuver wouldn’t play all that well in federal court, but you never know, signatures sometimes really matter.)

April 29, 2008 at 1:28 am Posted in: Current Events Print This Post No Comments

Fordham Law Review, Issue 76:5 (April 2008)

posted by Fordham Law Review

Fordham Law Review, Issue 76:5 (April 2008)

(Contents of past issues are available at our website)

ESSAY

Melissa B. Jacoby, Home Ownership Risk Beyond a Subprime Crisis: The Role of Delinquency Management, 76 Fordham L. Rev. 2261 (2008).

ARTICLES

John Bronsteen, Brendan S. Maher & Peter K. Stris, ERISA, Agency Costs, and the Future of Health Care in the United States, 76 Fordham L. Rev. 2297 (2008).

Kevin K. Washburn, Restoring the Grand Jury, 76 Fordham L. Rev. 2333 (2008).

NOTES

Gregory Apgar, Prudential Standing Limitations on Lanham Act False Advertising Claims, 76 Fordham L. Rev. 2389 (2008).

Jennifer A. Gniady, Regulating Direct-to-Consumer Genetic Testing: Protecting the Consumer Without Quashing a Medical Revolution, 76 Fordham L. Rev. 2429 (2008).

Amanda L. Houle, From T-Shirts to Teaching: May Public Schools Constitutionally Regulate Antihomosexual Speech?, 76 Fordham L. Rev. 2477 (2008).

Lauren E. Sasser, Waiting in Immigration Limbo: The Federal Court Split over Suits to Compel Action on Stalled Adjustment of Status Applications, 76 Fordham L. Rev. 2511 (2008).

James M. Shea, Jr., Who Is at the Table? Interpreting Disclosure Requirements for Ad Hoc Groups of Institutional Investors Under Federal Rule of Bankruptcy Procedure 2019, 76 Fordham L. Rev. 2561 (2008).

Andrew V. Trask, “Obvious to Try”: A Proper Patentability Standard in the Pharmaceutical Arts?, 76 Fordham L. Rev. 2625 (2008).

April 28, 2008 at 8:59 pm Posted in: Law Rev (Fordham), Law Rev Contents Print This Post No Comments

Fordham Law Review, Issue 76:4 (March 2008)

posted by Fordham Law Review

Fordham Law Review, Issue 76:4 (March 2008)

(Contents of past issues are available at our website)

ESSAY

Judith S. Kaye & Anne C. Reddy, The Progress of Women Lawyers at Big Firms: Steadied or Simply Studied?, 76 Fordham L. Rev. 1941 (2008).

ARTICLES

Robert P. Bartlett III, Taking Finance Seriously: How Debt Financing Distorts Bidding Outcomes in Corporate Takeovers, 76 Fordham L. Rev. 1975 (2008).

Roger A. Fairfax, Jr., Harmless Constitutional Error and the Institutional Significance of the Jury, 76 Fordham L. Rev. 2027 (2008).

NOTES

Frank D’Angelo, Turf Wars: Street Gangs and the Outer Limits of RICO’s “Affecting Commerce” Requirement, 76 Fordham L. Rev. 2075 (2008).

George A. Mocsary, Explaining Away the Obvious: The Infeasibility of Characterizing the Second Amendment as a Nonindividual Right, 76 Fordham L. Rev. 2113 (2008).

Amanda Sue Nichols, Alien Tort Statute Accomplice Liability Cases: Should Courts Apply the Plausability Pleading Standard of Bell Atlantic v. Twombly?, 76 Fordham L. Rev. 2177 (2008).

Katherine A. Rocco, Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure: In the Interest of Full Disclosure?, 76 Fordham L. Rev. 2227 (2008).

April 28, 2008 at 8:36 pm Posted in: Law Rev (Fordham), Law Rev Contents Print This Post No Comments

One more thought on methods of execution

posted by Alice Ristroph

Medellin v. Texas is the recently decided case involving a Mexican national on death row in Texas and a dispute about when the international commitments of the country as a whole bind individual states within it. In particular, one of the key questions was whether a decision by the International Court of Justice was “self-executing,” or if instead further Congressional action would be required to impose obligations on the state of Texas. (The U.S. Supreme Court decided that the ICJ judgment was not self-executing.) After the Court announced its opinion, a colleague said to me, “Of course, none of this would be a problem if we only had self-executing prisoners.”

Gallows humor, literally. Interestingly, though, self-executing prisoners are not entirely unknown to history. As made famous by Socrates, hemlock was a standard method of execution for a time in ancient Athens: the condemned would be presented with a cup of hemlock and “persuaded” to drink it. Hemlock stands in stark contrast to the other methods of execution reported in Danielle Allen’s study of Athenian punishment: stoning, death by sword, and a form of suffocation or crucifixion in which the prisoner was attached to a board by iron collars. Unlike these gruesome and starkly physical punishments, hemlock seemed to preserve the bodily integrity of the citizen and avoided bloodspilling. It may have also been attractive as a means to preserve at least the image of consent: the executioners and other Athenians could claim that the condemned person consented to be punished.

Now, it’s plausible that the historical Socrates actually consented to self-execution. (He was 70 years old, and by some accounts had something of a death-wish.) But the limited available evidence suggests that most Athenians who swallowed hemlock did so only to avoid a more painful and bloody alternative. And no one pretends that Texas could solve a problem like Medellin just by offering him a lethal cocktail instead of strapping him down and injecting him with one. (I say a little more about Socrates and hemlock, and a lot more about the nonconsensual nature of punishment, in Respect and Resistance in Punishment Theory.)

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April 28, 2008 at 6:10 pm Posted in: Constitutional Law, Criminal Law Print This Post One Comment

Thank You

posted by David Fontana

Thank you to Dan for his very kind introduction, and for giving me the opportunity to blog here for the next month. I hope to talk about a bunch of things, from the Supreme Court in the war on terror, to a few recent developments in comparative constitutional law, to a host of other topics. I hope it is a fun month!

April 28, 2008 at 5:08 pm Posted in: Uncategorized Print This Post No Comments

April Responses

posted by University of Pennsylvania Law Review

PENNumbra’s featured works are now available at www.pennumbra.com. This issue contains responses to two articles from the print edition of the Law Review.

John Gardner and R.A. Duff both respond to Michael S. Moore’s Causing, Aiding, and the Superfluity of Accomplice Liability. In his article, Professor Moore rejects the notion that a separate desert basis must be created for accomplice liability, by focusing on the actus reus of accomplice liability and asking “what does one have to do in order to be an accomplice to someone else’s crime?”

Professor Gardner, in his Response, Moore on Complicity and Causality, notes that, though he and Professor Moore agree “that causal wrongs exist,” they “part company [when they] turn to the question of which moral and legal wrongs are causal wrongs.” Gardner argues that “the wrongs of accomplices are all causal wrongs,” in that “aiding, abetting, and counseling are all straightforward ways of making a causal contribution to the wrongs that are aided, abetted, or counseled.” Gardner argues for a view of accomplice liability that incorporates “causal pluralism,” or that “causing something is not the only way of making a causal contribution” to an outcome. Human agency, Gardner asserts, involves a causal complexity that is “not visible to the experimental sciences,” and that this difference “explains both the significance and the importance of causal contributions that are distinguished, causally distinguished, with respect to their directedness and indirectedness.” He concludes that “the types of causal contributions made by accomplices to and through the acts of their principals vary” in ways that Moore’s account fails to provide for.

Professor Duff, in his Response, Is Accomplice Liability Superfluous?, explores the “third and fourth desert bases Moore identifies” and argues “that there is still some room for a distinctive doctrine of complicity and thus for accomplice liability as a distinctive type of liability.” Duff focuses on the mens rea of accomplice liability, specifically that of intentionality and foresight, and ultimately claims “that, even if all that Moore says about the actus reus is right, it does not warrant his conclusion” that there is no unique desert basis for accomplice liability.

Responding to Barak D. Richman’s Antitrust and Nonprofit Hospital Mergers: A Return to Basics, James F. Blumstein examines Professor Richman’s account under the two different “ways of thinking about the product and the industry – the traditional professional/scientific and the market-oriented model.” Professor Blumstein, in his Response, Antitrust Enforcement in the Health Care Industry: A Battleground of Competing Paradigms, describes the history of the struggle between these two paradigms, in the industry and in the courts, and how the “[a]pplication of the antitrust laws to the greater healthcare marketplace has . . . contributed toward a greater emphasis on the market-oriented paradigm,” leading to “push back in antitrust doctrine . . . in the context of judicial hostility to applying traditional antitrust orthodoxy to some components of health care.” Recognizing that the health care industry developed according to the professional/scientific model, Blumstein emphasizes Richman’s assertion that antitrust doctrine can play a “constructive role” in the context of hospital mergers, by “build[ing] accountability into an economic sector that has inadequate accountability mechanisms.” Blumstein concludes that “[a]ntitrust doctrine does not necessarily stand in the way of nonprofit hospitals that seek to merge, but it imposes an analytical metric that focuses on competition and efficiency.”

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review’s print edition articles.

April 28, 2008 at 4:46 pm Posted in: Law Rev (Penn), Law Rev Forum Print This Post No Comments

Want to Vote? Identify Yourself

posted by Deven Desai

The Supreme Court has just upheld Indiana’s law requiring voters to have photo identification. The case is Crawford v. Marion County Election Board (thanks SCOTUS blog for the coverage). This area of the law is quite complicated. I suggest reading the SCOTUS coverage and Rick Hasen’s commentary. Prof. Hasen wrote an amicus supporting the challengers of the law. His introduction to the detailed post demonstrates his ability to see the result and analyze rather than rant about the decision:

Today’s much anticipated decision in Crawford v. Marion County Election Board is a significant win for those who support stricter voter identification laws, even if they support such laws for partisan purposes. It will encourage further litigation, because it relegates challenges to laws imposing onerous burdens on a small group of voters to “as applied” challenges, but those challenges will be difficult to win. The lack of a majority opinion, moreover, injects some uncertainty into the appropriate standard for reviewing other challenges to onerous election laws. The Court’s specific split in this case will blunt charges that this is a politicized 5-4 decision — and it is significant that the Court, once again, has failed to cite to its opinion in Bush v. Gore. More on each of these points below.

So read the full post. It details some implications of the decision and the oddities of the 6-3 split in this case.

Image: A New York polling place, showing booths on the left, published in 1912

Author: E. Benjamin Andrews

Source: WikiCommons

April 28, 2008 at 3:32 pm Posted in: Constitutional Law, Politics Print This Post 2 Comments

Encouraging Vanity and Misogyny

posted by Frank Pasquale

Just in time for Mother’s Day, the book My Beautiful Mommy offers to explain for kids how “mom is getting a flatter tummy and a ‘prettier’ nose” via a trip to the plastic surgeon. Meanwhile, the new reality TV show Bulging Brides encourages participants to lose weight with the slogan “The perfect day is just pounds away.” Ann Friedman of Feministing calls the show “size-shaming meets the bridal-industrial complex.”

The mass media has dropped the ball in its coverage of both shows, generally focusing on the best “techniques” of accommodating women and their children to plastic surgery, or the spectacle and tastelessness of the bridal show. Some outlets have given feminist critics of plastic surgery a bit of time to put their case to the public, but by and large are drawn in by the slickness of each effort.

Media coverage of the children’s book and the show reveal once again the bankruptcy of old concepts of “objectivity” in journalism. At this point, there are at least three “narratives” of plastic surgery that are coherent (on their own terms): 1) a libertarian narrative that values increasingly instant and cheaper gratification of desires (and safety only secondarily), 2) a moral narrative that questions the vanity at the heart of the plastic surgery boom, and 3) a feminist narrative that critically examines the types of economic and cultural pressures that make women particularly susceptible to the appeals of cosmetic surgeons. It’s very hard to work all three narratives into a given story. Instead, we’re treated to inarticulate exclamations of “how cute and fun” or “how repugnant”–one more symptom of MacIntyre’s famed characterization of modern thought as a “moral Babel.” This superficial “balance,” unmoored from any larger understanding of what makes for a good (or at least unoppressed) human life, ends up promoting the very phenomena it claims merely to be covering.

April 28, 2008 at 2:07 pm Posted in: Feminism and Gender, Health Law Print This Post 2 Comments

Law & Lit Smorgasborg

posted by Frank Pasquale

Literature with implications for law and politics is the topic of this special issue of the Law and Politics Book Review. It has many bite-sized reviews/reflections. I particularly liked these thoughts from Simon Stern on Dr. Jekyll and Mr. Hyde:

Much of the interest in Stevenson’s tale lies in its status as a moral allegory about the human character, not as an exploration of Jekyll’s uniquely conflicted psyche. If Jekyll’s “underlying illness” is universally shared, should it be taken into consideration when we ask whether Hyde’s crimes were brought about by a voluntary act? Jekyll and Hyde thus opens up extensive vistas for discussion of different degrees of criminal liability.

And there are some provocative reflections on Brave New World from Tracy Lightcap:

What Huxley was trying to point out about the World State, is not that happiness and stability are undesirable, but that happiness and stability have to be achieved by societies that put individuals, not institutions, first. As Huxley says, “In this community economics would be decentralist and Henry-Georgian, politics Kropotkinesque cooperative. Science and technology would be used as though, like the Sabbath, they had been made for man, not . . . as though man were adapted and enslaved to them. Religion would be the conscious and intelligent pursuit of man’s Final End . . . And the prevailing philosophy of life would be a kind of Higher Utilitarianism, in which . . . the first question to be asked in every contingency of life being ‘How will this thought or action contribute to or interfere with, the achievement, by me and the greatest number of other individuals, of man’s Final End’” (pp.ix-x).

There is a good deal of food for thought in these and the 20 or so other reviews in the issue.

April 28, 2008 at 1:30 pm Posted in: Law and Humanities Print This Post No Comments