Author: Dan Filler

2

Hillary Taps Into Soprano America

Hillary Clinton’s featured in a new video playing off the Sopranos closer. It’s fun to see Bill and Hil acting, and there’s a nice guest appearance to boot. Remember Bill playing his sax on Arsenio Hall? These guys understand that you need to position yourself in the true American heartland – TV – if you want to connect with voters.

Watch it here. (You’ll have to pass through a fund-raising machine to get there.)

2

Appropriating “Organic”

It appears that the titans of the food industry are having their way with the USDA and the feds may soon approve a list of 38 non-organic items that may be included in foods marked “organic.” All of this interesting regulatory play is inidicative of the fact that organic foods finally hit the big time, and thus became worth of Big Food’s attention. We see a several different things happening here.

1. The public is becoming more concerned about the contents of its foodstuffs.

2. With more interest in organic food, Big Food decides to buy into to the industry.

3. Once bought in to the industry, making money off of the public’s (perhaps legitimate) fear of the current foodsupply (that Big Food created and aggressively markets), industry immediately sought to make organic foods cheaper, more attractive, or tastier (or perhaps all three) by adding non-organic ingredients.

4. With its meaning diluted (and I’m not taking a position on whether this dilution is meaningful – whether these 38 ingredients make items more or less healthy), the term organic may slowly lose its value as an indicator that a food product is distinctively more natural.

5. This will open new opportunities for creative small food marketers to create new language signifying the concept that “organic” once conveyed.

In the end, Big Food is simply doing with “organic” what it does with so many of the food products it markets: taking the underlying item (usually things like wheat, but in this case the word organic), processing it until it is a first cousin to its natural state, and serving up this not-quite-real but plenty alluring product to a waiting public.

Is this an example of markets working? Or of the vices of regulation? I’ll leave that question for people who actually spend money on this stuff. And I’ll have a Snickers and a Coke.

1

Corporate Law And Democracy Joins The Blogosphere

For those of you who have missed it thus far, Renee Jones at BC Law has started up a new blog, Corporate Law and Democracy. Here’s how she describes her agenda:

My aim is to bring together concepts and theories from a variety of legal disciplines that touch on questions related to the internal governance of corporations and the influence of corporations and corporate law on our political and social structure.

Best of luck to Renee – I look forward to watching her develop the blog.

1

Felony Murder Laws Really Work? Cut To The Video!

I’ve been teaching felony murder this week and in the course of one class I discussed the dubious theory that felony murder rules make felons commit their crimes more safely. Then whaddya know! One of my studenets forwards me this video link showing a robber helping his victim (who was having chest pains) call 911! Is it simple human kindness or could it be the criminal law at work???

5

Don Imus and Megan Kanka In A Soundbite Nation

Over at BlackProf, Darren Hutchinson has a good post about the understandably strong response to the comments of shock-jock Don Imus. Here’s a taste:

How do persons concerned with racial justice convince people to examine structural racism with the same level of intensity as they devote to incidents such as Nappy-Gate? When idiots like Imus (and Lott and all the other racists du jour) have moments of Freudian slippage, Sharpton, Jackson and others respond; the idiots apologize; and the racist “moments” pass. Victory! But what about the next day? Racism in its structural and individualized forms persists. Is it possible to capitalize on moments like these to bring attention to issues far more dangerous and pervasive than Imus (like conjoined poverty and racism)? Does intense focus on idiot du jour racism, rather than structural racism, make the latter even more obscure and beyond remediation?

I think this is an extremely important point. Events like the Imus fiasco have multiple pathogenic results. They make millions of people feel good about their petty racisms because “I never would have said anything that stupid and offensive.” They create excellent opportunities for individuals and institutions who promote, or benefit from, racism to speak out against Imus and publicly document their supposed opposition to racism, thus innoculating them against future criticism. Most of all, they obscure potent forms of institutional discrimination by creating the impression that Imus-like comments are the prototypical form of racism that we should all worry about.

Ironically, I fear most the suggestion that events like this reduce racism because they generate an important public debate about race. Any public debate happening in the aftermath of Imus seems to be a sideshow obscuring the main event – institutional racism that lacks fingerprints or soundbites, and operates silently and effectively throughout America’s day to day. The Imus affair reminds me a bit of the aftermath of Megan Kanka’s brutal abduction and killing. As bad as that individual case was, the public debate and legislative response – targeting the comparatively rare child sexual abuser who victimizes strangers- completely obscured the much more significant child sexual abuse problem in America: sexual assaults by close friends and family members and, in particular, step-dads and their equivalents. (Robin Wilson’s article remains a critical piece of this literature.)

As a general matter, if CNN can’t describe an issue in 60 second or less, it’s not a problem our society can acknowledge or address. Deep seated societal racism cannot be captured in a clip. Don Imus can be. The consequences? We learn that Imus = racism. Punishment and apology follows. And a relieved nation moves on.

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Justice Alito Inaugurates Drexel Law And Waxes Nostalgic

Spring brings birth and renewal, or in the case of Drexel College of Law, a ribbon cutting ceremony. While the inauguration was symbolic (Drexel Law has, after all, been open for business since August and the building opened in January), Justice Alito Amtrak-ed up to Philadelphia yesterday morning to do the honors. (He was joined by Arlen Specter, among others.)

Alito gave a brief speech, talking about his warm feelings for Philadelphia where he sat on the Third Circuit for many years. He said that he liked to think about that hot summer of 1787 when the founders convened to talk about a constitution. He talked of his great interest in the framers whom he described as men of optimism, tolerance and practicality.

His comments suggested a nostalgia for a time 200-plus years ago when a community of men wrote the paper that the Supreme Court has been interpreting – or is it carving up? – ever since. What do we make of these warm memories? I sensed a reverence for the Constitution – a good thing, it seems to me, for any Supreme Court Justice. But reverence doesn’t tell us much substantively. I also heard a subtle claim that that might suggest Alito relies on original intent not simply because it’s required for legitimacy, but also because framers’ intentions were, at core, good public policy. This is a much less apologetic take on framer’s intent than we often hear. Rather than waxing helpless (“sorry we can’t help you, but we’re stuck with the text we’ve got”) his words suggest that he might add “but even if we could change it, we wouldn’t.”

He provided no specifics, of course, and I am reading between the lines. But this does seem to be the logical next step in conservative constitutional jurisprudence: decisions that don’t just sound in the limits of judicial power, but also in good government. In this view, reference to framers’ intent(s) is simply a way of choosing 18th century “practical and tolerant” wisdom over today’s “jaded, short-sighted” opportunism.

In that sense, perhaps Justice Alito is a judicial Ronald Reagan, looking to bring the good old days back to our constitutional law. For him, Philly circa 1787 was that shining city on the hill. Sadly, those cities are never as wonderful – or just – as they appear at a distance.

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What’s The Deal With Song Lyrics Online?

soulmeetsbody.jpgWhen I hear a song and want to learn the lyrics, I turn to the web. Apparently, I’m not alone since there are oodles of these lyrics sites supported by advertisers seeking access to eyeballs. I’ve assumed these sites are operating at the edge of the copyright gray zone. After all, the lyrics are copyrighted text and the sites are profiting from them through ad sales. But if perhaps this isn’t “fair use”, it certainly is useful for music-lovers like me.

Or is it? I’ve been listening to a lot of new music recently. (Understand that new means new to me.) That includes Sufjan Stevens’ Illinois, Jim Guthrie’s Now More Than Ever, The Shins’ Wincing The Night Away, and Rogue Wave’s Out of the Shadow. A couple of friends have been filling the tank with homemade mix cd’s as well and my comments relate to one song included on a disc prepared by a D.C. lawprof buddy: Soul Meets Body, by Death Cab for Cutie.

I was searching to discover the correct lyrics for a line I took to be “there are lugs left in both of our shoes.” I traveled to one, then two, then three lyric sites to find out the “correct” answer. On one site, I was told that the line was “there are holes in left in both of our shoes”, on another it was “there are roads left in both of our shoes”, and on a third (which I cannot find as I write this post) the lyric was ‘soles left in both of our shoes”. (According to Atlantic Records, by the way, the noun is “roads.”) Once I discovered this inconsistency, I looked to see if the lyrics varied in other verses as well. No surprise: different sites showed variance at a number of different points. Using the powerful inferential reasoning I first learned at Wash U’s empirical research workshop, I concluded that these sites must be wrong all the time. These sites aren’t fair use – they’re fairly useless!

In the end, I discovered that various people hear the line in question differently. My own version may not be authentic but I’ll stick with it.

And I do believe it’s true that there are lugs left in both of our shoes

But if the silence takes you than I hope it takes me too

So Brown Eyes I’ll hold you near ’cause you’re the only song I want to hear

A melody softly soaring through my atmosphere

If you happen to see me drive by, that is what I’ll be singing, whether or not Ben Gibbard – or those manifold lyric site operators – would agree.

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Framing And Complaining: Sex Offenders Under A Bridge

Today’s inspiring news story, out of Miami, is that five sex offenders are living under a bridge with the approval of state authorities. Apparently, they are required to stay under the bridge every night from 10 to 6, and a parole officer routinely checks in on them. The story links the problem to legislation that forbids sex offenders from living withing 2500 feet of just about anything – schools, parks or places kids gather. I have a couple of reactions to this story – which has gotten a nice toehold in the national media (347 news articles in Google News as of 1:53 pm EDT.)

First, I have to put on my critics hat. There is plenty of reason to believe that the residence ordinances are only a piece of the story here. There are surely other places for these folks to live than under a bridge. The problem, I imagine, is that these offenders are poor. Their poverty is presumably related to both their prior convictions (which I suspect make it hard to find a job) and to a broader failure of the social safety net. It may also be related to their mental health, personal preferences, or other social behaviors. The point is, the media frames a nice story (residence restrictions = bridge living) but I have to believe the real narrative is somewhat more complex. (Perhaps the traction of these stories is further evidence that the media is now in mea culpa mode, repenting for its role in promoting the rare but scary stories that produce ineffective and irresponsible sex offender laws.)

But even with that critical eye, it’s still worth noting that some people misunderstand the implications of this story. That is, some view this situation as an example of sex offenders people getting their just deserts. (In the news story, County Commissioner Diaz says “nobody really told them to do this crime.” And a blogger noted that “when sex offenders whine…the media listens.”) To the degree that these offenders are living under a bridge as a result of their sex offenses, that is surely not the punishment legislators in Tallahassee envisioned. More importantly, though, pushing sex offenders onto the streets – where they are difficult to supervise, cut off from a community that provides binding social connections and incentives for good behavior, and left to live in a subcommunity of offenders and outcasts – may generate the precise risks legislators are most concerned about. It seems likely to increase the odds of their reoffending. Ineffective laws are one thing. Laws that make matters worse are something different altogether.

2

Defending Alabama

The University of Alabama, that is, and in particular Dean Ken Randall. Randall has been called to task by Brian Leiter and Gordon Smith for his comments to the Tuscaloosa News about Alabama’s rise in the new US News rankings. Randall said: “It is a proud day for our campus, the legal profession, and the entire state of Alabama. We have proven that our state can offer premier educational opportunities.” Brian places Randall (and others) in the Decanal Hypocrisy Hall of Fame. Gordon called these the “most over the top comments of the season.”

OK, everyone knows I’m biased. Alabama is my academic alma mater, a place where I spent my first eight years in teaching. But there are a couple of reasons why I think this criticism of Randall is harsh. The first, as it relates to the H-word (hypocrisy.) Bucking the dominant “official line”, Ken Randall declined to sign the LSAC letter critiquing US News rankings. (Gordon notes this.) People may disagree with Randall’s decision, as well as his comments, but they can’t quarrel with his consistency.

Second, Randall’s comments are capable of a more generous reading. For example, his second point – that the school has proven that Alabama can offer premier educational opportunities – is not necessarily a claim that this new ranking provides the proof. Indeed, if you listened to Randall travel across the state, you’d have heard him offer that same message for years – well before the new ranking. This is simply a point of pride and a bit of marketing. And it’s something else – something that folks in Alabama, Mississippi, Arkansas and the like will appreciate: it’s an opportunity to respond to both the external critiques, and the internal self-image problems, of a state that hasn’t always excelled in education. In this sense, the comment is both a retort to outsiders and a rallying cry to residents. The US News rankings were an opportunity to get this message into the papers, but it is a message that he has been effectively delivering for many years.

Finally, as to the most apparently problematic comment – that the new rankings are proud day for the campus, profession and state – the critiques I think overstate the case. First, this comment was offered to the local mass media and sounds in the language of sports and competition – something anyone in Alabama would recognize as part of the state’s patois. It is also a way to stir up donors. Like his comment about offering a premier education in the state, these words are designed to convince alumni that the law school is a worthy investment.

I suspect that someone could raise a defense of the other offending deans, so I don’t mean to damn them by my failure to comment. And I also don’t mean to argue that US News offers “accurate” rankings. I now teach at a school that is new and utterly unranked. That fact is surely disconcerting to some potential students. Yet I would also put many aspects of our program head to head with schools in the Top 50 – including, yes, Alabama. So in this sense, these rankings very much hurt Drexel. (And as I’ve shown previously, most newer schools do quite badly in the US News reputation competition.) But these rankings do provide some information to students (and, by the way, potential faculty) who might otherwise know very little about the University of Alabama’s of the world. And they also produce significant benefits for schools that do well – in terms of money, faculty recruiting and student recruiting. Isn’t it just as disingenuous to act like the rankings are no big deal, then quietly reap their rewards? And isn’t that what most of the other schools in the Top 50 do every day?

2

Sambuca On Ice? New Jersey’s ZUI Case

I like this story. Zamboni driver John Pergallo was charged with, and convicted of, driving under the influence. From the report:

Peragallo, 64, testified at his trial that he did drink beer and vodka, but not until after he had groomed the ice. However, he told police he had a shot of Sambuca with his breakfast coffee and two Valium-pills before work.

Apparently he operated his machine with a BAC of .12. This is well above New Jersey’s .08 limit for operating motor vehicles on the road. But the Superior Court reversed holding that the state DUI laws didn’t cover the act of driving a Zamboni in a sports arena. Perhaps we should be worried about ZUI’s, but I suspect that the legislature simply didn’t imagine ice grooming while drunk when it crafted the statute. (And did it consider rider mowers and floor buffers, for that matter? Buffing under the influence?)

This holding surely warms the hearts of those hockey players who’ve taken the old Zamboni out for a drunken spin after a late night practice. If you haven’t give it a try, you’d better hurry. The Regulatory State of New Jersey will surely modify it’s laws to face down this frozen menace.

Who knew that smoothing out a rink was so stressful, anyway?