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Author: Dan Filler

7

Wal-Mart And The Cost Of Life (Cereal, That Is)

Before I moved from Birmingham to Philadelphia, I expected certain things to cost more – particularly items with large local labor components (day care, for example) – and others to cost the same. For example, I figured that clothes at the Gap and food from the supermarket would be roughly the same price. But the upward spike in supermarket food costs (and the downward spiral in the quality of the shopping experience) have really been striking.

Local labor costs may be embedded in supermarket prices to a substantial degree. I suspect that union workers are checking me out in Philly, while the Alabama staff at Publix or Brunos were probably not organized. And real estate is surely pricier here. But I’m starting to suspect that the big difference is market pressure. The existence of Super Wal-Mart food shopping (and to a lesser, but substantial extent, Super Target food markets) creates clear market segmentation. If you want food at low prices, you leave supermarket chains entirely and shop at the Super stores. On the other hand, when you want a pleasant shopping experience, the middle to upper end large chains (think Publix) deliver a far nicer experience than any place I’ve shopped in Philly. Remarkably, though Publix was distinctly pricier than Wal-Mart and Target, on most food items, it was still cheaper on many items than all the markets in Philly. And Publix stores were consistently nicer than any supermarkets I’m finding in the Philly area.

Life cereal has been a litmus test for me. At Wal-Mart and Target, a 21 ounce box typically costs between $2.50 and $2.80, not on sale. At Publix, a 15 ounce box might run $4.50 or so – substantially more. But at Genuardis here in Philly (owned by Safeway), you might pay as much as $5 for that box. Starbucks coffee follows a similar pattern: $7 at Target, $8 at Brunos in Alabama, and $10 at Acme in Philly. (Warning: all these prices are rough, based on memory.)

What gives? My guess is that in a world without Wal-Mart, there is less of a market divide between “fancy” shoppers who demand a nice store and “value shoppers” who will ignore a little dirt and clutter. The result: fewer nice stores, less competitive prices. Everything is kinda mediocre. In a world with Wal-Mart, even the fancy Publix stores feel serious price pressure. Charge too much and even the BMW drivers will head to the Super Store. At the same time, Publix builds destination stores that leave you happy to drop an extra few dollars at the register. I’m not making the case for Wal-Mart as the best thing since sliced bread. I see the various social problems caused, directly and indirectly, by the retail titan. But I also see the consumer side. If everyone pays a little less for food in a Wal-Mart world, and poorer people are able to pay signficantly less, that’s a social benefit that can’t be ignored.

9

Is Accurate Transcription Always Fair?

In today’s NYTimes, Eric Konigsberg documents the closing of The Roxy, a major gay dance club in Manhattan. It’s apparently an ancient cultural icon: the “warhorse” of a club has been operating since 1991. (What does that make ME, exactly? A fossil?) The most interesting aspect of the article to me was Konigsberg’s uber-accurate depiction of one patron’s language. He writes:

Oh, my God, I had my coming-out party here 11 years ago,” said Terrence Cairy, a reed-thin, 35-year-old jewelry designer from Melville, on Long Island. “I brought my friends and broke the news. Some friends I lost, some friends I kept.” But, he said, “This place stayed. Oh, my God, I used to come here every weekend. One friend, I brought him here three years ago to come out. It’s a safe place to come out, and oh, my God, it has the best D.J.’s in the city.

Oh, my God! He is totally, like, trashing this guy! Many litigators can point to similar examples from court reporters who chose to provide a blow-by-blow transcription of proceedings, including “uhh”, “umm”, and every other sound emitted by an attorney. And somehow court reporters seem to target such precise accounts at those lawyers they like least. (In the case of court transcription, I suspect that lawyers reap what they sow. Treat court reporters right, and you’ll rarely suffer from such brutal honesty.)

All of which is a reminder that completeness is not always fairness. It depends on the context. And in the context of today’s Times, I found the precision, like, totally rude.

8

The Cultural Clash Over Guns

With Friday’s DC Circuit opinion substantially limiting the power of DC government to regulate gun possession, a huge new front of the culture wars may be set to begin. If the Supreme Court decides to step in, and decide the degree to which the Second Amendment limits governmental regulation of individual gun possession, we can expect interest groups on both sides to amp up the rhetoric. And if the Court were to give significant new force to the Second Amendment – subjecting state and local gun laws to any serious judicial review – we may see new brushfires surface across the country.

In general, people from more rural areas – as well as residents in metro areas in largely rural states (like Alabama) – seem hostile to gun control laws. Most of this hostility is of the slippery slope variety. These individuals are primarily attached to their hunting guns. And most experience virtually no regulation of rifles or shotguns. Many of these folks want to own handguns as well, but since handgun control laws are most common in urban areas, few of them are likely subjected to serious handgun control either.

Notwithstanding the lack of much actual regulation of these citizens’ guns, the NRA has effectively stoked their anxiety over gun control on the basis of slippery slope fears.

At the same time, gun control advocates seem to have had far less success convincing national (and even state) legislators to extensively regulate guns, notwithstanding what has appeared to be a very narrow application of the Second Amendment by courts. Indeed, the Second Amendment has proven to be an object lesson in the effectiveness of a constitutional provison even in the absence of judicial enforcement.

But it seems to me that the NRA does best in this environment. As long as the battle stays in the legislatures, gun control opponents don’t have to fight the second front: antimajoritarian interference by courts. Once gun control stops being simply a legislative issue, but part of the broader debate about the role of courts, it will be easier for gun control advocates to tap into anxiety about judicial activism that has been developed, in recent years, by conservatives. It will also create a bit more confusion across political lines by further showing how an “activist court” can both produce Roe v. Wade and the freedom to pack. On a practical level, a developed Second Amendment jurisprudence will produce loads of litigation as cities and states attempt to figure out what sorts of regulation are acceptable. This could help gun control activists by putting the issue in the news regularly – free media to counteract NRA dollars.

I can already imagine the ad campaign: “Millions of Americans have voted to make their streets safe again. The Supreme Court’s response? Screw you. Bring on the guns!” No matter what the slogan, expect fresh turbulence along the urban/rural and north/south divide if the Supreme Court gets into the gun control business.

9

Say Vagina, Go To Detention

One of the great things about blogging – much like hanging out in libraries – is that you can discover lots of interesting stuff when you follow the links. Like many other readers, I’ve found the AutoAdmit cyber stalking story pretty compelling and troubling. (Dave tweaks me for my nod to David Lat’s librarian hottie lists. I continue to think that this post falls into a very different category of cyber-jectification, but I’m open to educatin’.) Following various links, from Leiter, through Althouse, to Feministe, I discovered another nugget that I missed in yesterday’s web WaPo: a suburban NY school district suspended three girls for using the word “vagina” in an open-mic reading of (what else?) The Vagina Monologues. Apparently, prior to the performance, the principal had told the 11th graders that they could read the play, but not utter the V-word. Their one-day suspension was therefore framed as punishment for ignoring the principal’s orders. (The principal’s explanation is posted here.) Emil Steiner over the Post gets it right, from my point of view:

Fine, I’m willing to except that cop-out on face value, but if saying “vagina” wasn’t a problem, then why issue an order forbidding it in the first place? Was the school’s objective to teach them that no matter how repressively backwards a rule is, it must be followed blindly? Or maybe its goal was to demonstrate how irony (and/or totalitarianism) works by calling the event an “open mic” and then punishing those with the gall to speak into the said mic openly?

I’m not going to scream First Amendment here because let’s face it: I don’t know the doctrine. (And I can understand that high schools might, in very limited situations, need to regulate speech.) I also suspect that school administrators make similarly stupid decisions all the time – and nobody notices. But geez – did the principal (and note that I don’t name him…what do people think about that decision?) really think that in suburban NY, with three girls who clearly thought this was a worthwhile battle, such silliness would remain a quiet matter?

Actually, I find the story somewhat uplifting. Here we have three girls who appeared to have used excellent judgment both politically (could the girls have found a better chance to score points on both the free speech and feminsim front?) and personally (since, as Steiner says, these girls now have a “kick ass topic for their college essays.”) And I must say that, having read Jill’s compelling and hellish narrative of stalking, the word “uplifting” is about the last thing the AutoAdmit story brings to mind.

By the way, for everyone who found the unnamed victim in the WaPo AutoAdmit story a bit full of herself – the story does suggest that she believes that a Yalie’s failure to garner an offer is akin to a freak of nature (and there is a suggestion, in Althouse comments at least, that she might be a 1L…which makes her job search story somewhat less exceptional) – read Jill’s post. Her story is far more powerful.

0

Geographical Disparity And The Death Penalty

As Doug Berman noted, St. Louis University Law School, along with Washington University in St. Louis, put on a truly engaing conference on the issue of prosecutorial discretion and the Missouri death penalty. The conference was built around a study by Barnes, Sloss and Thaman that showed, among other things, a notable disparity in charging of first degree murder, seeking of death, and imposition of death, between different Missouri counties.

This leads to an interesting question: is there something problematic about intra-state geographic disparity in sentencing? Criminal law practitioners have long been aware of county-by-county disparities in sentencing. For example, when I was public defender in Philadelphia, it was routinely the case that a person who stole a car (for a first offense) would get probation in the city. Take that same car from the suburbs, however, and the defendant would go to jail. The same held true for shoplifting: suburban communities with big malls (and big mall revenues) were considerably tougher on retail theft.

The reality is that communities inevitably judge crime in context. As one panelist noted, a two kilo cocaine bust looks a lot different in Miami than in a small community in the middle of Virginia. And the sentence will likely reflect the uniqueness of the offense. One of the benefits of sentencing guidelines – if this is indeed a benefit – is the flattening of sentencing differences within a state. But perhaps local communities should exert substantial control over sentencing. After all, the citizens of Oakland and and those in Orange County probably don’t agree about the proper sanction for, say, marijuana sales. When you level the field, urban communities – often home to unusally large numbers of minority defendants – may see sentences leveled up, not down. This is one of the pernicious aspects of federal sentencing guidelines. Vermnot defendants receive South Carolina sized sentences.

So what about the death penalty? Is geographic disparity with respect to the death penalty particularly noxious? Should there at least be statewide consistency for this sanction? I’m not sure. There are strong reasons to oppose use of capital punishment – first of which, it seems to me, is that the death penalty does disparately affect people based on race, class and disability (all of which are illegitimate bases for disparate treatment, in my mind. ) For me, however, local differences are a not-entirely-unfriendly aspect of our governmental system. So the main question becomes: does geographical disparity mask the unaccpetable sorts of difference based on race, class, or disability? (And I am most worried when the difference is inheres to the detriment of minorities groups; disparity that harms majority groups is at least slightly more likely to be managed through majoritarian process.) The Missouri study suggests that geography masks race; that is the question we should probably be asking.

6

Are Supreme Court Clerk Feeders (Almost) All White Men?

I’m in St. Louis in preparation for a conference (the official title: Life and Death Decisions

Prosecutorial Discretion and Capital Punishment in Missouri) built around an interesting new study by David Sloss (SLU), Kathie Barnes (Wash U.) and Stephen Thaman (SLU). Tonight, in preparation for nothing in particular, Doug Berman, Margo Schlanger and I noodled over the question: are any of the most successful Supreme Court clerk feeder judges women? One that came to mind was Judith Rogers. I’m not sure whether any of the other DC Circuit Judges – like Henderson or Brown – have had similar success. What about Judge Jones on the Fifth Circuit? Similarly: are there any African-American judges who are frequent feeders? (I guess that depends in part on whether Harry Edwards still has the touch.) Finally, and less relatedly, are there any district court judges that send their clerks straight to the Big Time? All these questions are surely answerable – I just don’t have the answers. Comments appreciated!

1

Protecting The Rights Of African-American Majorities

Jack Chin offers up an interesting new take on Jim Crow, arguing that the 14th and 15th Amendments were adopted at a time of African-American majority rule. From the abstract:

When it mattered, when the Fourteenth and Fifteenth Amendments were enacted and for decades after, African Americans were a majority or controlling plurality in the states where most lived. African American-backed majoritarian governments controlled the South after the Civil War; while in power, they enacted strong civil rights laws and created a public education system. These policies were reversed, and segregation imposed, not because African Americans were a minority, destined to lose in the majoritarian political process, but rather through elimination of democratic politics and imposition of minority rule.

He goes on to raise the spectre of a “majoritarian difficulty.” The piece is worth a look.

5

Good Intentions, Bad Outcomes For Capital Defendants

Back when he was Alabama’s Attorney General, Bill Pryor used to complain that big (Northern) firms only lined up to represent capital defendants at the point of collateral challenges. Why, he’d ask, don’t they step up at the trial stage? A certain suspicion is present in this question, a suggestion that this decision is strategically designed to frustrate use of the death penalty. But as anyone experienced in criminal practice will tell you, it is easiest to prevent a death sentence at the trial stage – either by squeezing out a plea deal, winning at trial (really, almost impossible in capital cases, unless you roll the dice and give up any hope of showing forgiveness in the sentencing phase, should it occur), or “winning” life at the punishment hearing. (One caveat here: in Alabama, where judges override jury verdicts of life in order to further their own political ambitions, all the good lawyering in the world can lead to nothing. As a result, an Alabama capital defendant may actually do better on appeal than at trial. The fact that this is true shows the perversity of the Alabama override system.)

So why don’t these excellent, well-funded counsel take cases at trial? There are presumably a few reasons. One is that trials are harder and more expensive to handle when your office is 1000 miles away. A second is that firms may actually prefer that their junior associates get the experience of working on what (probably incorrectly) appear to be more law-based collateral challenges. (They also aren’t interested in giving up the large chunk of attorney time required to handle a trial.) But a third reason, I suspect, is that the lawyers in these firms just don’t feel up to the task of trying a capital case. They don’t think they have the proper background; they may even think it would be malpractice. It’s easy to picture a partner at Simpson, Thacher saying “I’ve never tried a criminal case in my life…let alone one in Alabama.”

It is one of the curiosities of capital work that the leaders in the field have successfully convinced many other good lawyers (and not just Big Law lawyers from out of state) that you shouldn’t take a capital case without a commitment of serious time and a strong background in criminal and capital practice. They’re right, of course. The problem is that when these good lawyers pass on capital cases, defendants in many jurisdictions end up with a mediocre or downright terrible lawyer. The attorneys who ultimately handle the case may have tried dozens of criminal matters, but they aren’t necessarily sophisticated or talented practitioners. They may never gave given a thought to the difference between guilt/innocence and the penalty phase. They may accept mediocre attorney/client relations that make it impossible to sell a young client on a plea of life without parole. And they may dedicate what seems to them a reasonable 30 or 40 hours to prepping the case.

When I first considered starting a capital defense clinic at Alabama, a friend who’d formerly worked at a Death Penalty Resource Center counseled me against it. He correctly believed that I was too overtaxed to dedicate the time such a clinic truly required. But I created a model that worked – reasonably well, though not perfectly – because it struck me that, in Alabama, in the year 2002 (and still today), perfection really can be the enemy of the good. I’m not sure I was right in setting up that clinic, but I hope that if nothing else, we trained a few lawyers to worry about exactly these questions.

3

Federated Library Searches: A New World Order, Literally

One of the great pleasures of being part of Drexel Law’s start-up is hearing various librarian candidate job talks. The other day I attended a talk by a candidate for acquisitions librarian, and in the course of the presentation I came upon one of those “this is so obvious, why haven’t I thought about it before” moments. It was all about federated searches.

As any active consumer of academic libraries knows, a fast growing portion of the collection is now in digital format. There are e-books, digitized texts that can be viewed online from your desk. There are digitized government documents. And of course there are the digitized journals. Yet right now, despite the fact that significant portions of the overall collection are digitized (with the striking exception of monographs), we still follow the same search silos as before. Want to find an article? You have to find the right database to search. Want a book? Forget whole text search (except perhaps on Amazon or Google.) Search the card catalog. Government docs? I don’t know how you search them!

But as a library’s collection of digitized material grows, it will soon be possible conduct a single search that surveys the entire library collection. These federated searches will help prevent the all-too-familiar phenomenon of missing that key article or book – often from another discipline – which was exactly what you needed for your project. It will also make it far easier for law review authors to meet the tedious demand that every claim, no matter how small, be footnoted.

I look forward to a time when comprehensive research is easier. But these searches will have broader implications. Once digital journals are lumped together with hard copy journals for research purposes – something that has not happened in law, at least – it may cause many law schools to move their secondary journals into digital-only format. And a move to digital-only will make it cheaper for law schools to add new secondary journals (and thus offer more students a journal experience.) Of course, it will continue to be difficult or these journals to find quality content.

There may also be a temptation to extend the scope of these search engines, wrapping other internet material into the searched databases. If these searches include the entire web, perhaps via google, they may produce too much material to be useful. But perhaps librarians will now band together to create a sub-category of freely available web resources that might be tracked by these new search engines. This would be a perfect consortium project. I wonder if Wikipedia will make the cut?