Archive for the ‘Culture’ Category

Kentucky: Boy, 5, Kills Sister, 2

posted by Sarah Waldeck

That’s not my headline.  It was in the New York Times earlier this month, in the section where the paper provides short blurbs about what is happening around the country.

My youngest daughter is in kindergarten.  Here is a list of some of the things that she either cannot do or is not allowed to do: cross a busy street by herself; pour milk from a full gallon jug; ride in a car without a booster seat; and tie her shoes (I know . . . she’s working on that one).  She is, however, a highly capable kid.  So it might be fairer to her if I listed some of what she can do:  get herself ready for school; ride her bike around the block; make her bed; use a variety of electronic devices that begin with an “i”.

But regardless of whether the list is of “cannots” or “cans,” it does not square with this statement from the county coroner in Kentucky:

 Mr. White said that the .22-caliber rifle had been kept in a corner and that the family had not realized a bullet was left inside it. “It’s a Crickett,” Mr. White said, referring to a company that makes guns, clothes and books for children.  “It’s a little rifle for a kid,” he said, adding, “The little boy’s used to shooting the little gun.”

I grew up in a small Wisconsin town.  At my high school, so many teachers and students were absent on the first day of deer season that school might as well have been cancelled.  Today some of my close relatives keep hunting rifles in their closets.  So while I absolutely do not want to suggest that I know anything about the family that suffered this terrible tragedy, I am familiar with the kind of culture in which a .22-caliber rifle is put in a corner.

Which is not to say that I wasn’t jarred by the phrase “a company that makes guns, clothes and books for children.”  Or that I expected, when I visited Crickett’s website, to see child-sized guns in bright blue and pink.   And watch out Joe Camel, because Crickett’s mascot is a jolly green frog sporting a rifle, boots, and a hunting cap.

Footbinding, smoking, drunk driving—these are all legend among law and norms scholars.  But with few exceptions, almost no one talks about trying to change gun culture through the sort of small, incremental changes that have made such a difference elsewhere.  Certainly it is daunting to even think about how to spark change.  And it’s also true that those whose ideas would make a difference would only receive posthumous gratification, because change might not actually be realized until my kindergartener has great-grandchildren.

But Boy, 5, Kills Sister, 2.

  May 15, 2013 at 10:29 am   Posted in: Culture, Second Amendment   Print This Post   17 Comments

Daily Routine: Then and Now

posted by Lawrence Cunningham

Intellectuals used to refine ideas in relative solitude before releasing them to the world.  Modern technology has led the incubation of ideas to occur publicly, dynamically and in real-time. Is that entirely good or are some ideas better developed in private?  Brief reflection on the daily routine offers a window onto the transformation.

A typical Wednesday during the academic year in 2003 for a professor might have begun by reading the printed newspaper delivered to the front door, evaluating stories of interest to one’s class, followed by a trip to the office, a review of a binder of teaching notes, and the live interactive dialogue with students assembled in person.  After lunch, reading of printed journal articles and bound books would stimulate  production of such output, as well as op-eds, essays, chapters and treatises.

Today, the typical day begins by checking (1) email, including Google alerts, (2) Twitter, (3) Facebook, (4) Linked In,  (5) this blog (Concurring Opinions), (6) several bookmarked blogs, (7) blawg search, (8) SSRN and Scholarly Commons, (9) reddit, and (10) the web sites of one or more news organizations.  Then professors email students, create and update PowerPoint slides on course web pages or MOOC sites, type Tweets, update Facebook, draft responsive blog posts and download papers to lap tops and books to e-readers.

Eventually, the scholar will still turn ideas generated during a semester’s worth of such daily routines into the old fashioned products, such as books and articles.   But the route differs considerably.  In the old days, study would be relatively private, with ideas developed reflectively in one’s school, tested against a careful review of a vetted literature, surfaced in substantially mature form via classroom lecture, faculty workshop and conference presentations, refined, submitted, reviewed, edited and published.  More speculative ideas might appear, if at all, in footnotes classified as such.

Today, much of the incubating process occurs in real time and in public, with inchoate ideas floated on Twitter and Facebook and then perhaps in blog posts and comments before being turned into op-eds, essays, chapters, articles, books and the rest. It is exciting and interactive and creates a sense of communities engaged in broad pursuit of knowledge.  Yet reading some of the unrefined stuff out there raises the question, to paraphrase what Moses Hadas said of a certain book, whether modern technology fills a much-needed gap.  Just an idea.

  April 10, 2013 at 6:46 am   Posted in: Culture, Humor   Print This Post   2 Comments

Data Streams and E-Textbooks

posted by Sarah Waldeck

Today “smart” e-books are in the news.  These books give professors access to a stream of data about how individual students are using their e-books—whether they are skipping pages, highlighting specific passages, or taking notes in the book. The software that makes such monitoring possible even provides an “engagement index” for each student.  The news stories I’ve encountered have mostly focused on how the data enables professors to identify and then reach out to students with poor study habits.

I don’t know how to spell the sound I made when I first heard this particular news angle, but it was something close to the classic UGH.  The company that created the software says its surveys indicate that few students or colleges have privacy concerns.  But I know I would feel like I was spying on the adults I teach.

Which is not to say that I couldn’t put the data stream to some use, at least in an aggregate form.  If a meaningful portion of my class does not appear to be reading the textbook but is nonetheless performing well in class and on exams, then my course is too easy or the textbook is a dud, or some combination of the two.

The data stream may also be of interest to the institutions that employ professors.  Every university, college, or graduate school has at least a couple gut courses—classes in which students can do very little work and still get good grades.   One concern in law schools is that GPA-conscious students will flock to a gut course instead of one that would better prepare them for the bar and eventual practice.   A dean who is trying to convince a professor that her class needs to be harder could put the data from smart e-books to very effective use.   In fact, some professors will be disinclined to embrace smart e-books once they realize that students aren’t the only ones who can be watched.

Last, I am struck by the connection between the emergence of smart e-books and a post Larry wrote a few weeks ago.  Larry’s post laments that as e-books become increasingly dominant, he will no longer be able to peruse the bookshelves of colleagues or friends as a means of sparking a connection or sizing them up.   E-books do not serve the same (often inadvertent) signaling function as a print book.  E-books mean that no-one can get a window into my interests by scanning my shelves or seeing what’s open on my coffee table.  They also mean that I can no longer pick out law students on the subway by looking for a telltale red binding.  But with smart e-books, a select group will know more about these students’ reading habits than most of us would have imagined just a few years ago.

  April 9, 2013 at 2:08 pm   Posted in: Culture, Teaching   Print This Post   3 Comments

“Where Are the Books?”

posted by Lawrence Cunningham

Books have lined the shelves of the offices of all my colleagues at every school where I have worked.  In my early days of teaching, or when spending a term as a visitor, I’d wander into a learned neighbor’s office to get acquainted.  The titles and content of those books announced a persons’s intellectual background and interests. They were instantly and extensively a topic of earnest discussion.  If my interlocutor should be interrupted by a call or an assistant popping in, I’d amuse myself by grazing over the titles, scanning the shelves that added up to an inventory of knowledge.  On their shelves and mine, students attending office hours would likewise find easy ice breakers.

When visiting the homes of friends, especially new friends but longer-term friends as well, it has always interested me to see what books are stacked on their shelves, in the living room, the study, along hallways. At parties, these books have been great conversation starters, fountains of discourse and debate.  You could even pick them up and hand them over, citing the passage on a given page where you recalled a point being made particularly well.

My wife and I, when house hunting the last time around, inspected two dozen apartments before falling in love with the homey charm of the one where we live now.  As an anonymous broker showed us through the absent homeowners’ place, we’d scan the stacks of books that gave a sense of the people who lived there–lovers of art history, a denizen of Wall Street, devotees of history, biography, the Civil War.  Stephanie and I would joke, when viewing that rare apartment empty of books, that the absence of books was an absence of warmth and that we would not trust the people who lived there.  ”Where are the books?,” we’d ask in bewilderment as we rode down the elevator, never to return.

Today, with reading so often done and “books” acquired digitally, stored in pixels on hand-held devices, we see fewer new titles gracing the offices of colleagues and teachers, the homes of friends.  No longer on display, they can no longer be conversation pieces.  The average age of books on shelves is rising steadily and even these becoming anachronistic.  Shelves are given over to decoration, clocks, cups, bells, photographs.   My wife and I wonder, “what will our kids think, 10 or 20 years from now, when they see an apartment without a single book in it?”  Maybe nothing.  We would be horrified.

But exactly what the future holds is uncertain.  One of my recent books, The Essays of Warren Buffett, is selling briskly in both print and digital, though with vastly more sales in print than digital, yet it costs $35 in print and half that in digital.  Time will tell.

  March 26, 2013 at 2:08 pm   Posted in: Culture   Print This Post   23 Comments

Why Other People’s Money is The Best Hollywood Film About Business

posted by Lawrence Cunningham

Go down the list of Hollywood films about business and you will find one biting portrayal of capitalism after the next. As the late Larry Ribstein documented and explained, all of the following movies and most other artistic renderings have this biased flaw: Erin Brockovich, A Civil Action, The Constant Gardner, Blood Diamond, Michael Clayton, Pretty Woman, Wall Street (or take older examples such as Dinner at Eight or The Hudsucker Proxy or those once listed by Forbes as epitomizing this genre, such as Citizen Kane, The Godfather, It’s A Wonderful Life, Glengarry Glen Ross).  

That’s why I find Other People’s Money (1991) refreshing, and probably the best Hollywood film about business (contrary to dominant, contending, opinion).  The movie is among the few nuanced artistic portrayals of corporate life. The play, and the movie it became, presents two sides of the story when conflicts arise between economic imperatives and socially pleasant outcomes. That’s why I often assign the film as part of my course in Corporations (hello students!).

OPM pits against each other two men seeking to control the destiny of an ailing New England family company in the dying industry of manufacturing wire and cable: a greedy and creepy takeover artist called Larry “the Liquidator” Garfield (in the film played by Danny DeVito) and the patrician lord of the target company named Jorgenson (Gregory Peck, making for perfect casing of both roles). 

Garfield opens with a monologue celebrating money, along with dogs and doughnuts, and denigrating love and basic human kindness. In his first encounter with Jorgenson, Garfield announces that the New England company is worth “more dead than alive.”

Jorgenson sniffs at such short-termism, stressing moral aspects of business life, and refuses either to pay Garfield to go away or borrow money to navigate through the difficult times. Garfield counters with assertions about free enterprise, Darwinian markets and the imperatives of business change.

The drama pursues this contrast between “doing right” and “doing well” through a proxy fight for corporate control. It climaxes with an exchange of speeches at a special meeting of shareholders.  Read the rest of this post »

  March 25, 2013 at 3:10 pm   Posted in: Corporate Law, Culture   Print This Post   3 Comments

Sunday Night Monday Morning music

posted by Deven Desai

I’m re-reading Gravity’s Rainbow (Pynchon now on Kindle by the way). Finished V. Finished Crying of Lot 49. Tried to pick up Vineland which I loved. Wanted the difficult, mad, beautiful language. Back to Gravity’s Angel. For fans I post a song I knew before I read the book. It is Laurie Anderson’s Gravity’s Angel. Honestly, she’s not for everyone. Maybe not for most. But if you dig experimental music and complex lyrics give it a shot. The album Mister Heartbreak from which the track comes is fun too. Again fun for some. It has William Burroughs on Sharkey’s Night. I quoted it at my Cal graduation. That is below too. Shorter.

Where’s the law? Not sure. As Burroughs intones, “And sharkey says: hey, kemosabe! long time no see. he says: hey sport. you connect the dots. you pick up the pieces.” OK for a bit more, as I have said here before, life beyond the law matters. And it turns out that knowing life beyond the law might make you a better lawyer. That, by the way, is why empathy for a judge is important and a good thing. If you can’t walk in someone else’s shoes, at least read more, listen to more, watch more. Great writing, great communication opens the door to the world beyond yours and mine. At least those are the dots I connect. The pieces I pick up.

  March 25, 2013 at 12:11 am   Posted in: Culture, Just for Fun, Law School, Weird   Print This Post   No Comments

42 minutes 59 seconds + copper wire (and a little more) = bliss

posted by Deven Desai

Question: Why 42 minutes 59 seconds? Not 43 minutes. Not 42 minutes, 58 seconds. 42 minutes 59 seconds. Solution: Step One. New receiver. Step Two. Unpack old B&W speakers. Step Three. Strip casing, twist copper. Step Four. Connect all. Step Five. Insert album designed for stereo. Step Six. Hit Play. Step Seven. Bliss.

Answer: Dark Side of the Moon. Forty years old as of March 1, 2013.

I unpacked my speakers and set them up a few weeks back. Headphones are nice. They are portable. They are personal. They may even allow sound to envelop you. But not like speakers. Dark Side of the Moon was the first CD I bought. It is a great way to appreciate music engineered for stereo. I put the disc in years ago. Hit play. The next 42:59 was great. The same was true a few Sundays ago. I had a cup of tea (loose leaf, my mix of lapsong, Assam, and Kenyan). I hit play. 42 minutes and 59 minutes slipped away. That was a good, damn good day.

I recommend getting to a stereo and trying it.

(Even on your computer, check out Money, below, for the stereo fun.)

  March 21, 2013 at 1:37 am   Posted in: Culture, Just for Fun   Print This Post   6 Comments

Vintner, lawyer, pioneer, James Barrett has died

posted by Deven Desai

I know that Silicon Valley gets all the hoopla for the way knowledge and industry can thrive, but look a bit north and you will find that similar things happened in the wine industry. That industry just lost a leader. James Barrett was the head of Chateau Montelena when its Chardonnay beat French wines in a taste test that changed the wine industry. He died yesterday. (Stag’s Leap’s Cabernet Sauvignon won the red category). The story (embellished but fun) was told in the film Bottle Shock.

Barrett was an attorney (Loyola L.A., ’51) who became a winemaker. Reports say he fell in love with wine. He followed a dream. I would bet that his legal training helped with the business. Regardless, he and others in Napa changed the wine industry. Part of that success came from using science and research from U.C. Davis to guide the wine making process. The vineyard also employed Mike Grgich who went on to run a rather good vineyard on his own. As Barrett said about the success, “Not bad for some kids from the sticks.”

Technology, lawyers, and new approaches to a business that has made a huge amount of money and that happens to bring joy to those who imbibe wine. What’s not to love? I, for one, will raise a glass to Barrett and hope that other kids from the sticks are inspired to try and do likewise in whatever field they love.

  March 20, 2013 at 6:26 pm  Tags: Chateau Montelena, James Barrett, technology transfer, wine  Posted in: Culture, Intellectual Property, Technology   Print This Post   No Comments

Autonomous Vehicles: Unintended Upsides and Changes

posted by Deven Desai

Some day we might do away with pretext traffic stops, because some day autonomous vehicles will be common. At ReInventlaw Silicon Valley, David Estrada from GoogleX, made the pitch for laws to allow autonomous vehicles a bright future. He went to the core reasons such fuel sustainability and faster commutes. He also used the tear jerking commercial that showed the true benefits of enabling those who cannot drive to drive. I have heard that before. But I think David also said that the cars are required to obey all traffic laws.
If so, that has some interesting implications.

I think that once autonomous vehicles are on the road in large numbers, the police will not be able to claim that some minor traffic violation required pulling someone over and then searching the car. If a stop is made, like the Tesla testing arguments, the car will have rich data to verify that the car was obeying laws.

These vehicles should also alter current government income streams. These shifts are not often obvious to start but hit home quickly. For example, when cell phones appeared, colleges lost their income from high rates for a phone in a dorm room. That turned out out to be a decent revenue stream. If autonomous vehicles obey traffic laws, income from traffic violations should go down. Cities, counties, and states will have to find new ways to make up that revenue stream. Insurance companies should have much lower income as well.

I love to drive. I will probably not like giving up that experience. Nonetheless, reduced traffic accidents, fewer drunk drivers, more mobility for the elderly and the young (imagine a car that handled shuttling kids from soccer, ballet, music, etc., picking you up, dropping you home, and then gathering the kids while you cooked a meal (yes, should I have kids, I hope to cook for them). The time efficiency is great. Plus one might subscribe to a car service so that the $10,000-$40,000 car is not spending its time in disuse most of the day. Add to all that a world where law enforcement is better used and insurance is less needed, and I may have to give in to a world where driving myself is a luxury.

  March 17, 2013 at 5:31 pm   Posted in: Criminal Law, Criminal Procedure, Culture, Technology   Print This Post   No Comments

The Rule of the Clan – Mark Weiner’s new book

posted by Deven Desai

What is happening with the world? Is it falling apart? Is the state the problem? Is everything to big? Is everyone better off breaking into small groups? Mark Weiner has answers in his book The Rule of the Clan. Understanding clans helps us understand the problems and relationships among individual liberty, the state, domestic policy, and foreign policy.

Mark Weiner is one of the best thinkers I know. I will note that Mark is one of my dearest friends as well. Mark has authored three books. The first two have won awards. The latest, Rule of the Clan, is, to me, yet more impressive. I will be posting more about this book. But for now, here is Mark on the Brian Lehrer Show.

  March 15, 2013 at 2:05 pm   Posted in: Articles and Books, Constitutional Law, Culture, History of Law, International & Comparative Law, Law and Humanities   Print This Post   No Comments

Addictive by Design

posted by Frank Pasquale

I was honored to see Prof. John Banzhaf weigh in on a recent post on wellness programs. That post suggested parallels between the addictiveness of tobacco, and that of many food products. Little did I know the NYT was about to publish a blockbuster article on exactly that issue:

[In a 1999 meeting of food industry leaders,] [t]he first speaker was a vice president of Kraft named Michael Mudd. . . . As he spoke, Mudd clicked through a deck of slides — 114 in all — projected on a large screen behind him. The figures were staggering. More than half of American adults were now considered overweight, with nearly one-quarter of the adult population — 40 million people — clinically defined as obese. Among children, the rates had more than doubled since 1980.

Mudd then did the unthinkable. He drew a connection to the last thing in the world the C.E.O.’s wanted linked to their products: cigarettes. First came a quote from a Yale University professor of psychology and public health, Kelly Brownell, who was an especially vocal proponent of the view that the processed-food industry should be seen as a public health menace: “As a culture, we’ve become upset by the tobacco companies advertising to children, but we sit idly by while the food companies do the very same thing. And we could make a claim that the toll taken on the public health by a poor diet rivals that taken by tobacco.”

Fast food lawsuits are looking more prescient by the day.

Illustration: Via Engadget article on interactive ad patents.

  February 21, 2013 at 2:47 pm   Posted in: Agricultural Law, Culture, Current Events, Economic Analysis of Law, Food, Tort Law   Print This Post   24 Comments

Eurovision Song Copy Scandal

posted by Frank Pasquale

Germany is abuzz over accusations that its 2013 Eurovision nominee, Cascada, copied the song of 2012′s winner, Loreen. (Cascada’s Glorious is here; Loreen’s Euphoria is here.) Here’s Der Spiegel’s report:

Phonetician Tina John confirmed the plagiarism claims. “‘Glorious’ is a copy of ‘Euphoria’ with subtle stylistic differences,” she said. In terms of beat, vocals and pauses, the songs are very similar. “The vocals at the start are completely identical,” she adds. “The refrain uses the same emphasis and works up to a climax in an identical way. The singer even uses the same breathing style.”

Read the rest of this post »

  February 18, 2013 at 1:00 pm   Posted in: Culture, Intellectual Property   Print This Post   4 Comments

The Blue Book and its Times

posted by Lawrence Cunningham

Yale Robinson, a student in my Corporations class, today told me about his law review note topic, which happened to be in the same field as my Note, published back in 1987. After class, Yale went and found my Note and emailed me a report about it.  In the email, Yale added:

As an aside, it is amusing to see that the Table of Contents in the Cardozo Law Review of that time does not list the author of a Note, only the title, and the first page of the Note also does not give the author’s name. You have to go to the last page to see the author’s name. I don’t know why this was done, but it appears that this omission was rectified beginning with the April 1991 issue.

I replied as follows:

The curious style you mention was the standard practice at all law reviews at all schools for [decades, since 1926,] up through 1991 when the Blue Book announced the change. Before 1991, notes were “unsigned” and citation was merely to Note, . . .  rather than Cunningham, Note . . . .

Another practice changed around the same time: in the old days, only an author’s last name was used (Cunningham or Robinson etc); thereafter the first name and initial are included.

I think these changes reflect things about the times, such as elitism that wore away in the case of naming Note authors and a sense of full identity . . . in the case of the full name.

The keepers of the Blue Book keep citation practice up with the times.  Looking back at the styles of earlier eras can be amusing.  I wonder what other amusing anachronisms are to be found in the old style books.

 

You can see the covers of a dozen different editions of the Blue Book, from which the two in this post are taken, here.  

 

 

 

  February 11, 2013 at 3:47 pm   Posted in: Culture, Law Rev Forum, Law School   Print This Post   2 Comments

How do you say “copyright” in Zulu?

posted by Lea Shaver

Are the costs and benefits of copyright protection roughly the same in English and in Zulu? Or is copyright law’s impact radically different from one language to another?

Copyright protection gives authors the exclusive right to market their works. This has the benefit of channeling profits back to authors, enhancing the financial incentives to create new works. But it also has the cost of limiting competition, inflating prices for consumers, and restricting public access to existing works.

Copyright scholars have extensively debated these costs and benefits. But we have not yet done much thinking about how the cost-benefit calculus might play out for different languages.

That project lies at the heart of my current work-in-progress, which advocates targeted copyright reforms to promote publishing in lesser-spoken languages.

From an economic perspective, the publishing market is fundamentally different from one language to another. English books can be marketed to an enormous and wealthy global audience. The audience for Zulu works, however, is 1% as large and has significantly less disposable income.

Scholars continue to debate the relative effectiveness of financial versus nonfinancial incentives for authorship. But there is no doubt that the incentives are powerfully present for English-language works. That does not appear to be true for works in Zulu.

According to recent data, 77% of books sold within South Africa are in English, though only one in ten South Africans speaks English at home. The vast majority of South Africans speak African languages such as Zulu. Yet books in all African languages combined account for only 11% of the South African publishing market. Of African language book sales, 89% are textbooks, subsidized by government purchasing.

The copyright system that has so effectively incentivized the production and distribution of works in English has not produced equivalent benefits in Zulu. The costs of copyright protection – including higher prices and barriers to translation – are also particularly burdensome for the Zulu-speaking community.

In theory, the costs of copyright protection may outweigh the benefits in many linguistic communities characterized by small size and low wealth. I’m working now on some case studies to see whether facts on the ground support that prediction.

If so, my suggestion is not to change copyright law generally, but to adjust the rules for certain languages. There are thousands of different linguistic communities in the world, each as unique as the various expressive works that copyright law protects. A one-size-fits-all regime is unlikely to be ideal.

Reforms to strike the right balance could be implemented at the level of national policy making. By treating different languages differently, countries may be able to improve publishing in languages such as Zulu without prejudicing the interests of authors and publishers in the dominant markets.

In a series of posts during my month as a Co-Op guest blogger, I’ll explore how we might structure such reforms and other issues raised by this project.

  February 3, 2013 at 1:02 pm  Tags: copyright, languages, local language limitations, publishing, South Africa, translation  Posted in: Culture, Intellectual Property, International & Comparative Law, Uncategorized   Print This Post   5 Comments

The Good Life and Gun Control

posted by Dave Hoffman

Like many of you, I’ve been horrified by the events in Newtown, and dismayed by the debate that has followed.  Josh Marshall (at TPM) thinks that “this is quickly veering from the merely stupid to a pretty ugly kind of victim-blaming.”  Naive realism, meet thy kettle!  Contrary to what you’ll see on various liberal outlets, the NRA didn’t cause Adam Lanza to kill innocent children and adults, nor did Alan Gura or the army of academics who helped to build the case for an individual right to gun ownership.  Reading discussions on the web, you might come to believe that we don’t all share the goal of a society where the moral order is preserved, and where our children can be put on the bus to school without a qualm.

But we do.

We just disagree about how to make it happen.

Dan Kahan’s post on the relationship between “the gun debate”, “gun deaths”, and Newtown is thus very timely.  Dan argues that if we really wanted to decrease gun deaths, we should try legalizing drugs.  (I’d argue, following Bill Stuntz, that we also/either would hire many more police while returning much more power to local control).  But decreasing gun deaths overall won’t (probably) change the likelihood of events like these:

“But here’s another thing to note: these very sad incidents “represent only a sliver of America’s overall gun violence.” Those who are appropriately interested in reducing gun homicides generally and who are (also appropriately) making this tragedy the occasion to discuss how we as a society can and must do more to make our citizens safe, and who are, in the course of making their arguments invoking(appropraitely!) the overall gun homicide rate should be focusing on what we can be done most directly and feasibly to save the most lives.

Repealing drug laws would do more —  much, much, much more — than banning assault rifles (a measure I would agree is quite appropriate); barring carrying of concealed handguns in public  (I’d vote for that in my state, if after hearing from people who felt differently from me, I could give an account of my position that fairly meets their points and doesn’t trade on tacit hostility toward or mere incomprehension of  whatever contribution owning a gun makes to their experience of a meaningful free life); closing the “gun show” loophole; extending waiting periods etc.  Or at least there is evidence for believing that, and we are entitled to make policy on the best understanding we can form of how the world works so long as we are open to new evidence and aren’t otherwise interfering with liberties that we ought, in a liberal society, to respect.”

Dan’s post is trying to productively redirect our public debate, and I wanted to use this platform to bring more attention to his point.  But, I think he’s missing something, and if you follow me after the jump, I’ll tell you what.

Read the rest of this post »

  December 19, 2012 at 9:39 pm   Posted in: Constitutional Law, Courts, Criminal Law, Criminal Procedure, Culture, Current Events, Law and Psychology   Print This Post   14 Comments

The Annoying “Riiiiiight” in Faculty Workshops

posted by Lawrence Cunningham

Imagine law professor Felix Cohen giving a law faculty workshop of his famous 1935 paper, Transcendental Nonsense and the Functional Approach (here), addressing the topic of personal jurisdiction over corporations.  But pretend he is presenting the paper to a faculty today, in 2012, and tune your hear to the sound of the words he might utter when explaining his argument to those assembled.  If he followed the common gluey talk of fancy law professors today, it might be transcribed as follows:

The question of where a corporation is, right, when it incorporates in one state and has agents transacting corporate business in another state, right, cannot be answered by empirical observation, right. Nor is it a question that demands for its solution any analysis of political considerations or social ideals, right.

It is a question identical in metaphysical status, right, with the question scholastic theologians are supposed to have argued at great length, “How many angels can stand on the point of a needle?”, right.  Now it is extremely doubtful whether the scholastics actually discussed this question, right. Yet the question has become, for us, a symbol of an age in which thought without roots in reality, right, was an object of high esteem.

Will future historians, right, deal more charitably with such legal questions as “Where is a corporation?” Nobody has ever seen a corporation, right. Some of us have seen corporate funds, corporate transactions, etc., right. But this does not justify assuming that the corporation travels about from State to State as mortal men travel, right.

Yet it is exactly in these terms of transcendental nonsense, right, that the Court of Appeals approached the question of whether the Susquehanna Coal Company could be sued in New York State. “The essential thing,” said Judge Cardozo, writing for a unanimous court, right, “is that the corporation shall have come into the State.” Why this journey is essential, right, or how it is possible, we are not informed.

The opinion notes that the corporation has an office in the state, right, with eight salesmen and eleven desks, and concludes that the corporation is really “in,” right, New York State. From this inference it easily follows, right, that since a person who is in New York can be sued here, right, and since a corporation is a person, right, the Susquehanna Coal Company is subject to suit in a New York court, right.

The much-maligned “you know” would be as productive as “right” in this transcript. You rarely hear law professors insert that phrase in their speech. Too polished for that. Yet they pepper their sentences with the annoying right, usually pronounced riiiiiight, with the lilt of a rhetorical question. A lamentable institutional habit.

UPDATE IN REPLY TO THE KIND COMMENT OF EDWARD CANTU: We  had a post and conversation about So here at Co-Op, which can be viewed here.

 

  November 22, 2012 at 7:00 am   Posted in: Culture, Law Talk, Psychology and Behavior   Print This Post   10 Comments

Bye, Bye Big Brands, Twinkie, Ding Dong: Hostess Brands, Inc. Liquidating

posted by Deven Desai

Ghostbusters, Die Hard, my lunch in grade school all had Twinkies (OK my lunch also alternated with Ding Dongs). In Ghostbusters the Twinkie symbolized psychokinetic energy, in Die Hard it substituted for a cop’s doughnuts, in my lunch it was I guess dessert but substituted for real food. The Wall Street Journal reports, however, that the era is over. Hostess Brands, Inc. is seeking permission to liquidate the company. It’s attempt at reorganization has failed. According to WSJ, “A victim of changing consumer tastes, high commodity costs and, most importantly, strained labor relations, Hostess ultimately was brought to its knees by a national strike orchestrated by its second-largest union.”

There are real people, places, and assets behind these brands. 18,000 workers will lose their jobs. 36 plants will close. The facilities and land will be sold. There is product inventory too. “Loaves of bread and plastic packages of icing-filled desserts” need to go. WSJ suggested that big box stores will be where the food stuff ends up. I remember when Coke changed its formula and folks hoarded the original Real Thing. I wonder whether that will happen with Twinkies. (Given the supposed shelf-life of a Twinkie, a strange pastry cellar built for and owned by some fanatic seems plausible to me).

And, Hostess Brands will sell…its brands. That is where the most money may be made. As I point out in From Trademarks to Brands, brands are not the same thing as trademarks. In the early days of trademarks, one could not sell a brand without the facilities. Today the brand as assest is a given. Selling it as thing is sanctioned by the law even though such practices do not do well within the law economics explanations for trademarks. I argue that a way to understand the move from direct competition to anonymous source, the growth of goodwill, and the expansive view of merchandising and licensing can be explained by brand practices much more than Landes and Posner’s law and economics view. (64 Florida L. Rev. 981, 1009-1019).

I wonder how folks will perceive the sale. If a company buys the name Twinkie or Ding Dong and then makes the cakes with different ingredients or sources for the ingredients, will that matter? What if the taste varies? What if in a year people think Hostess still makes Twinkies and buys the brand based on that error? Is that confusion we care about? Maybe we should not care about any of these. Then again if someone buys Twinkie and uses a new recipe, and then someone makes Twinkies with the original recipe, should that be allowed? Probably not but why is unclear. A healthy market that assumes rational consumers should be able to let information about such variances drive the market, right? Of course we don’t do that in trademark law.

Hmm, perhaps some sugar will help fuel thinking through these points. Better get Twinkies and Ding Dongs before this incarnation is gone.

  November 16, 2012 at 12:10 pm   Posted in: Culture, Economic Analysis of Law, Intellectual Property   Print This Post   3 Comments

Cyberstalking, Still Ignored (Really)

posted by Danielle Citron

Since Friday, the news has been abuzz about the resignation of General Patraeus and the FBI investigation of alleged cyber stalking that led to the exposure of his affair and potential security risk — blackmail — that such an affair raises.  According to today’s New York Times and other media coverage, the FBI agent who spearheaded the cyber stalking investigation was not really seeking to enforce the federal Interstate Stalking law.  Instead, the agent thought, “This is serious” because the e-mail sender “seem[ed] to know the comings and goings of a couple of generals.’”  The FBI agent supposedly worried that might suggest the Generals were being stalked in ways that could compromise national security.  The Times explains that the agent “doggedly pursued Ms. Kelley’s cyberstalking complaint,” despite being admonished by supervisors who thought he was trying to improperly insert himself into the investigation.  What’s clear: the agent pursued a criminal investigation of Ms. Broadwell for allegedly stalking Ms. Kelley (though it’s clear that is not the stalking that worried the FBI), which served as the basis for the warrant obtained by the FBI to retrieve Broadwell’s e-mails and ultimately obtain the e-mails of General Patraeus.  This investigation used cyber stalking of Ms. Kelley as a pretext to obtain Ms. Broadwell’s e-mails and hence to better understand what the agent thought was the sexual nature of the relationship between Ms. Broadwell and the General.

On first hearing about the investigation, I never kidded myself that the FBI was taking cyber stalking seriously.  That is not to say that they never do, but the typical response to cyber stalking complaints is to advise victims to turn off their computers, to return to the precinct when their stalkers confront them offline, to pursue their harassers with civil suits, and/or to ignore their attackers who will eventually get bored.  Or as cyber stalking victims have told me, law enforcement agents, both federal and state, incorrectly tell them that criminal law provides little help to cyber stalking victims.  (Federal and state law often does punish repeated online conduct directed at private individuals for no legitimate reason that is designed to cause substantial emotional distress that does in fact cause substantial emotional distress, 18 U.S.C. 2261A(2)(A)).  Indeed, little has changed since the Department of Justice reported in 2001 that the majority of law enforcement agencies refused to investigate cyber stalking cases because they lacked training to understand the seriousness of the attacks and the potential legal responses.  Part of the problem may be attributable to officers’ poor response to stalking generally.  According to the 2009 National Crime Victimization Survey, stalking continues to be frequently overlooked and often misunderstood.  Half of those surveyed explained  that officers took a report and did nothing else.  Almost 19% reported that officers did nothing at all.  They attributed police inaction to a lack of interest in getting involved, a sense that no legal authority existed, and incompetence.  Lack of training and troubling social attitudes are to blame for criminal law’s under-enforcement.

  November 15, 2012 at 11:42 am   Posted in: Culture, Current Events, Cyber Civil Rights, Privacy, Privacy (Electronic Surveillance)   Print This Post   4 Comments

whoa Mouse eats The Force

posted by Deven Desai

Disney buys Lucasfilms.

  October 30, 2012 at 5:51 pm   Posted in: Culture, Intellectual Property   Print This Post   One Comment

In the tradition of Christmas before Halloween, silver and gold … shoelaces?

posted by Deven Desai

A certain Mr. Kennedy sells shoelaces. They come in silver or 24 carat gold. How much? I’m glad you asked. A pair of silver laces are $3,000. A pair of gold laces are $19,000. And in case you are not in awe yet, consider there is an order limit! Yes, my friends, there appears to be a limit of 30 units for silver and 10 units for gold. I could not believe that limits were needed. I poked around. It may be that these are limited edition. But the order info and language about shipping times varying depending on what is in stock make me think perhaps the limit is a security issue or maybe there are laws about that much precious metal being shipped about. I suppose one could be quite the Auric Goldfinger and smuggle using the laces.

I also love that the name is supposed to be a nod to the inventor of the shoelace but these works also have an odd fair trade labor gloss:

MR KENNEDY WAS THE FOUNDER OF THE MODERN DAY SHOELACE. THESE ‘ULTIMATE’ SHOELACES ARE A HOMAGE TO HIM. WE HAVE CREATED THE WORLDS FIRST PURE GOLD AND SILVER SHOELACES. ALL OUR LACES ARE HANDMADE BY OUR TEAM IN COLOMBIA WITH EACH SET TAKING APPROXIMATELY 120 HOURS TO PERFECT.

THEY ARE MADE FROM SILVER AND GOLD, MINED LESS THAN 10 MILES FROM WHERE THEY ARE MANUFACTURED IN THE MIDDLE CAUCA GOLD BELT AND THEY ARE BROUGHT TO YOU BY ‘MR KENNEDY’.

MR KENNEDY AND PRECIOUS SHOELACES WAS AN IDEA INSPIRED BY THE CREATIVITY OF THE PEOPLE OF QUINCHIA, COLOMBIA. THE ARTISAN MINING INDUSTRY THERE HAS LED TO A JEWELRY MARKET WITH SKILLS UNPARALLELED AROUND THE WORLD (MAYBE IT’S THE COFFEE).

So we have name from a dead inventor, an invokation of local craft and sources, and an appeal to wealth and exclusivity. Maggie Chon’s work on Marks of Rectitude is a good read to see how fair trade and labor claims are more and more important. These items seem to take the ideal or Whole Foods (or Whole Paycheck as some call it) and go to the limit of the decadent, righteousness.

  October 12, 2012 at 2:35 am   Posted in: Culture, Intellectual Property, Just for Fun, Weird   Print This Post   No Comments

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