Category: Culture

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Fun! Fun! Fun! In The High Court Of Justice, Chancery Division

Mr. Justice Peter Smith, the British judge hearing the Da Vinci Code copyright case, has issued an opinion which contains some sort of hidden message. Italic letters in the first seven paragraphs spell out “Smithy Code.” In subsequent paragraphs, other letters also stand out, but they have yet to be deciphered. The judge was very candid about his work, saying in an interview “I can’t discuss the judgment, but I don’t see why a judgment should not be a matter of fun.” Gowri Ramachandran over at Prawfs agrees.

This is not the first time that a judge has crafted an opinion with an eye towards entertainment. Judge Kent’s famous order denying a motion to transfer has long been a Smoking Gun staple. Judge Buchmeyer’s opinion in Rimes v. Curb Records, written to the tune of Leann Rime’s “How Do I Live” is another goodie. (A portion of it can be found here.) Indeed, there is a whole website dedicated to curious and entertaining judicial opinions.

Are there institutional costs to using opinions in this way? In the individual case, it would seem to make little difference how funny or dry the opinion. But over time, if judges start to be seen as frustrated comedians, I wonder if the judiciary writ large loses some of its gravitas. Can a judicial comedian command the respect necessary to desegregate a school district, put a sitting governor in jail, or override a jury’s death verdict and impose life? (I discuss some of these issues in my piece, From Law to Content in the New Media Marketplace.)

I suspect that judges reap a benefit from these opinions beyond the opportunity to flex their funny muscles. I’m guessing – and I’d love to hear if this is right from those who know – that funny judges like Kent and Buchmeyer do particularly well hiring law clerks. Who wouldn’t want to clerk for a judge who airs it out from time to time?

There is also a broader question about whether the social role of judicial opinions changes when they are marketed by media outlets as “fun reading”. Will these content distributors push judges to produce more such opinions? Judicial decisions are, after all, free content. They aren’t copyrighted and the authors are paid with tax money. And the sale of quality free content produces very nice profit margins. Think these concerns are a bit silly? Think that nobody would really look at an opinion for fun? Consider today’s Birmingham News, where on the front cover the editors tease: “CAN YOU CRACK THE CODE? See the ruling online at www.al.com/birminghamnews/documents. ”

Will Shortz, watch your back!

0

You gotta have Friends

The California Supreme Court has ruled in Lyle v. Warner Bros., the Friends sexual harassment case. The plaintiff alleged a hostile work environment, stemming from writers’ use of offensive jokes about sex during script writing sessions. The court disagreed, ruling unanimously against plaintiff in upholding the trial court’s summary judgment decision. The decision states in part:

Based on the totality of the undisputed circumstances, particularly the fact the Friends production was a creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes, we find no reasonable trier of fact could conclude such language constituted harassment directed at plaintiff because of her sex within the meaning of the FEHA. Furthermore, to the extent triable issues of fact exist as to whether certain offensive comments were made about women other than plaintiff because of their sex, we find no reasonable trier of fact could conclude these particular comments were severe enough or sufficiently pervasive to create a work environment that was hostile or abusive to plaintiff in violation of the FEHA.

In addition, Justice Chin argued in a concurrence (relying largely on the writings of Eugene Volokh) that the plaintiff’s claim is barred by the defendant’s freedom of expression under the First Amendment. David Bernstein at Volokh.com has a post suggesting that the majority should have based its decision on that ground.

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The epicurean ecumenical

One effect of living in a religiously plural society is an ability to reap epicurean rewards. I’m reminded of this every time I take the opportunity to stock up on Passover Coke. Passover Coke is made with sugar, rather than corn syrup. As such, it is acceptable for Passover use by observant Jews. It is also considered by most Coke drinkers to be a tastier beverage, and so non-Jewish buyers like myself take advantage of this opportunity to buy tastier Coke.

(When I buy Passover Coke, I only do so from full shelves. My inner ethical meter won’t let me buy the last, or even close-to-last bottle of Passover Coke from any store. I find myself imagining that such action on my part would affect some poor observant Jew shopping at the same store few minutes later — that I would deprive her of her chance to buy Coke, and she would have to sit through a Passover without Coke because of my selfish actions. So, no last bottles for me — but if the shelf is full, I make sure to stock up.)

It’s not just Passover Coke, either. It’s fun to hit a diner and order some Matzo ball soup. (That stuff is tasty, particularly on a chilly New York day) Also, during Hannukah, my old law-firm cafeteria sold cute little Hannukah chocolates that I regularly took home for the kids. And so on.

I hope that this epicurean ecumenicalism isn’t a one-way street. I hope that some of my Jewish friends enjoy the (probably more limited) epicurean benefits of Christian holidays — chocolate Easter bunnies and Cadbury eggs, candy canes and gingerbread.

And while I don’t want to overstate the point, I can’t help but think that enjoying the tasty celebrations of other religious groups has to have a salutary effect on inter-group tolerance and understanding. Perceptions of a group’s gastronomic profile can certainly affect society’s thinking. If lies about Jewish dietary habits (among other things) spread by the Czar’s secret police can lead to pogroms and hatred, then can’t a shared bowl of Matzo ball soup, washed down with some Passover Coke, lead to greater understanding and appreciation of diverse religious culture and tradition? I like to think so.

In the meantime, there’s a strictly-vegetarian Indian place up the 15 a ways, next to a Hindu temple, that I’m hoping to get to some time soon.

28

A Feminist Gets Married

I got hitched Saturday. Beforehand, I had been sheepish about telling my students I was getting married. It seemed inconsistent with my professional persona as an independent, fearless, freedom-fighting law professor. So I waited until the last possible minute to mention it. “OK, I have a quick announcement,” I began a recent Criminal Law class. “I do apologize, but I have to cancel next Thursday’s class because… um… well… my partner and I have decided to get married.” My students then began to clap. Gads, this was worse than I’d imagined it would be. The applause grew.

“No, no—please don’t clap. This is a truly freakish event that was never supposed to happen to someone like me.” Applause turned to laughter. Now I’d gotten myself in a fix.

Gavin had faced none of this angst. He had told his journalism students months ago, and he’d enjoyed their applause, while I skulked around my school as if I had a dirty little secret.

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Mobbing in Academia?

This article [registration required] in the Chronicle claims that academia is rife with mobbing, or:

‘an impassioned, collective campaign by co-workers to exclude, punish, and humiliate a targeted worker.’

To flesh out the concept, [an academic] drew up a list of 45 mobbing indicators. It amounted to an impressive catalog of bureaucratic nastiness: ‘You are interrupted constantly’; ‘you are isolated in a room far from others’; ‘management gives you no possibility to communicate’; ‘you are given meaningless work tasks’; ‘you are given dangerous work tasks’; ‘you are treated as if you are mentally ill.’

Notably, this work bears many similarities to Prof. Livingston’s post on law professor happiness, discussed here not so long ago. The article explains that mobbing is (allegedly) quite prevalent in universities:

[I]nstitutions where workers have high job security, where there are few objective measures of performance, and where there is frequent tension between loyalty to the institution and loyalty to some higher purpose.

To be honest, I just don’t see the problem here. Even if “mobbing” were a real phenomena, and even if it occurred at relatively higher rates in institutions, so what? Most faculties have a few marginalized folks. Most for-profit enterprises do not. Because the for-profit enterprises fire people who don’t fit in. Bearing with irritating colleagues is the trade-off that academics have made to retain tenure. Since tenure isn’t wildly unpopular among professors, I imagine that people think it is worth it.

Thus, I doubt the article’s claim that “mobbing” could be reduced by changing governance structures or training better administrators. If you can’t fire people who offend, and setting up positive incentive structures is similarly difficult, managing behavior will be left to informal social sanctions. Like shunning, and shaming, and, I suppose, mobbing.

Law of Conservation of Responsibility?

Back in 2004, a Florida judge angrily sent 11 defendants—mainly traffic offenders—to a jail cell for hours because they happened to be in the wrong courtroom. He’s now trying to keep his job, and claims in his defense that he had undiagnosed attention-deficit hyperactivity disorder (ADHD).

I think the case raises fascinating issues, less for the judge’s defense (I have no idea whether it’s accurate or exculpating), than for the cultural effect of such defenses. Are support groups for people with ADHD glad to see such defenses raised in court, since they add legal heft to diagnoses? Or are they worried that opportunistic defendants are going to discredit ADHD as one more tool to “get around” conventional notions of responsibility? I’d love to hear more on this type of debate, either in the criminal context (over the insanity defense) or in civil contexts. It’s a bit topical, given that the Supreme Court will hear arguments in Clark v. Arizona on April 19, to determine whether defendants have a constitutional right to an insanity defense.

All I’ll say for now is that this is not just a scientific question….

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Relative Deprivation, Location, and Lawdenfreude

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As a recent buyer of a “luxury” (read: habitable) condo in a not-so-fashionable precinct of Jersey City, I obsessively read about the “housing bubble.” It’s about as irresistible as kitschy old TV shows. The latest installment is this interesting piece by Dean Baker, arguing for governmental intervention designed to pop the purported bubble “sooner rather than later:”

If mortgage rates were pushed back to more normal levels (e.g., 7 to 8 percent), it would almost certainly lead to a sharp reduction in housing prices. Deliberately destroying trillions of dollars of wealth may seem like perverse policy, but it is important to recognize the context. If there is in fact an unsustainable run-up in housing prices, then the question is not whether prices will fall, but rather when prices will fall. The wealth is not really there. It is an illusion.

Housing economists can have a field day debating the wisdom of this proposition as a policy matter—I defer to their opinions. What piques me is the notion of “illusory wealth.” The housing bubble story reveals something fundamental about “wealth creation” via certain assets that mainstream economic measurement tends to ignore. For the 68% or so of people who own a house, rising real estate prices bring security and well-being. But for the rest, they can cause real anxieties. In many commodities markets, rising prices can induce more suppliers to meet the demand. But in many urban centers, there is little space left next to public transit or desirable amenities. Supply can’t rise to meet demand. So what we really have is a bidding war for prime space. Does this have any implications for law?

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If anything, they should be rewarded

I’m not a particularly ardent fan of the U.K. version of The Office, but I’ve seen a few bits of it here and there, and they can be pretty funny. One of the classic exchanges is between David and Gareth, on the subject of, well, boobs:

[David is mocking a porn site, and reads off of the computer screen]

David: ” ‘Dutch girls must be punished for having big boobs.’ Now you do not punish someone, Dutch or otherwise, for having big boobs.”

Gareth: “If anything they should be rewarded.”

David: “They should be equal.”

Gareth: “Women are equal.”

David: “I’ve always said that.”

With that background, one can fully appreciate this recent news story: “A dancer has launched a $100 million lawsuit against the American musical Movin’ Out, claiming she was emotionally abused and lost her job because her breasts grew too large for her costume.” Yes, it turns out that, according to the lawsuit, some people are punished for having big boobs. Best of all, however, is her lawyer’s statement to the press, in the same newsclip: “In the ballet world, obviously, people are small-breasted. On Broadway, what happened should be an attribute.”

Or in other words, “if anything, they should be rewarded.”

Three Cheers for Categorizers!

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Dan mentioned an indefatigable blogger who’s now taxonomizing over 600 law-related blawgs. I’ve heard a lot of critics of bloggers complain about “navel-gazing” in this field. But this type of work is exceedingly valuable, as I try to demonstrate in a recent piece on “information overload externalities.”

In my view, categorizers are a uniquely beneficial “genus” in the information ecosystem, and they deserve special solicitude from copyright law. Categorizers should be able to provide small samples or clips from whatever works they organize or index, without begging for licenses from the copyrightholders who own the sampled work.

Unfortunately, categorizers have been getting some rough treatment by courts lately. For example, Google recently lost a battle against “erotic image purveyor” Perfect 10 because the low resolution images on its “image search” might reduce Perfect 10’s sales to the “cell phone viewing” market. The Author’s Guild (which appears neither to represent all authors nor to be a guild) is suing to stop Google’s digital book indexing project—even though Google permits any aggrieved copyright owner to opt out! They believe Google should have to work out, individually, permissions for each of the millions of books they want to index.

Imagine if uber-taxonomizer 3L Epiphany had to ask permission to quote or cite to any of the blawgs he compiled. Are we really going to let a few cantankerous holdouts veto an effort to archive and index the world’s expression? I hope not, for a couple reasons…

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Sour grapes from Proulx

So the film based on your short story — a great film, by the way — wins a bunch of awards at various venues, but loses the Best Picture Oscar in an upset. What do you do?

If you’re Annie Proulx, I guess you write an incredibly tacky piece for The Guardian, in which you call the Best Picture winner “Trash” and rail on the Academy, its voters, and the award ceremony in an extended rant that is neither smart nor funny.

I guess I’m still young enough to be surprised when smart, articulate people use their considerable skills — and access to major media outlets — to embarrass themselves in the most conspicuous ways possible. Proulx may be an author capable of a very good story, but she comes across as utterly classless in her Guardian piece, taking the description “sore loser” to a new level. To slightly adapt the old saying: Better to keep your mouth shut and let people wonder whether you’re an ass, than to open it and remove all doubt.