Anyway, it’s a useful expression for someone who feels trapped by a bad situation.  I thought I’d pass it along.  It’s an illustration, incidentally, of [...]]]> I can across this saying recently in a post about the perils of blogging by Todd Henderson.  It allegedly is a Yiddish proverb, made popular in a speech by Malcolm Gladwell.  I’m actually not so sure it’s a real piece of Yiddishkeit.  None of my (Hungarian) Yiddish-speaking relatives have heard of it, and I can’t find the real Yiddish version anywhere.  Rather, I think the expression is best sourced to Isaac Bashevis Singer, who wrote an English short story with the expression in the title, and who used variants in several other pieces. (If anyone knows different, please feel free to comment.)

Anyway, it’s a useful expression for someone who feels trapped by a bad situation.  I thought I’d pass it along.  It’s an illustration, incidentally, of how bizarre associations can make writing more vivid.  (What’s the worm doing in horseradish?  Why horseradish?  Are worms kosher for Passover?)  It’s also a useful reminder, in this new year, that it’s pretty bad to be a worm in horseradish.

“The most glaring example of the authors’ unwillingness to recognize that their subject has any bounds is the chapter on “Potential Interaction With Advanced Forms of Non-Earth Life” (ch. 9, pp. 974-1021). The problem of men from Mars (and elsewhere) is still, mercifully, in the realm of science fiction, and it is therefore not surprising that the authors have almost nothing to contribute to its solution.”

Final Examination Professor Graham Holiday 2011 Semester

PROFESSOR’S INSTRUCTIONS:

1. You have three hours to complete the exam, which consists of a single question.

2. This is a closed-book exam.

3. Assume that the facts as given are true, and take place in the fictitious State of Confusion.

4. Good luck!

QUESTION ONE

On Christmas Eve 2011, Santa Claus landed his sleigh atop the roof of the Adams household. After squeezing down the chimney, he left gifts for the Adams family, ate the milk and cookies that had been left out for him, and then shimmied back up the chimney to the roof.

As Santa prepared to board his sleigh, he slipped and fell on an [...]]]> TORTS

Final Examination
Professor Graham
Holiday 2011 Semester

PROFESSOR’S INSTRUCTIONS:

1. You have three hours to complete the exam,
which consists of a single question.

2. This is a closed-book exam.

3. Assume that the facts as given are true, and take place in the fictitious State of Confusion.

4. Good luck!

QUESTION ONE

On Christmas Eve 2011, Santa Claus landed his sleigh atop the roof of the Adams household. After squeezing down the chimney, he left gifts for the Adams family, ate the milk and cookies that had been left out for him, and then shimmied back up the chimney to the roof.

As Santa prepared to board his sleigh, he slipped and fell on an icy shingle. Santa tumbled down the roof and crashed into the bushes below, hurting his back. Mr. Adams had seen the ice on his roof earlier that day, but decided not to clear it off; the task seemed like a lot of work, it was cold outside, and there was a good football game on TV. As Santa lay injured in the bushes, a partially unwrapped gift—a Chia Pet—inexplicably fell from (or was disgustedly tossed out of) a window at the Adams residence, and clobbered Santa on the head.

The tumult caused Santa’s reindeer to panic and fly off without him. The out-of-control reindeer and sleigh crashed into and pulverized the chimney at the nearby Batista household. Meanwhile, the Chen and Davis children had been “nice” this year, but received no presents due to Santa’s injury and the runaway sleigh. Believing that Santa considered them “naughty,” the Chen and Davis kids suffered serious emotional distress.

Later that night, one of the gifts that Santa had left for the Adams family, a Sniggie® blanket (like a Snuggie, only cheaper), spontaneously burst into flames. The ensuing fire burnt the Adams house down to the ground.

Finally, the events related above caused some scales to topple onto a woman standing at a train station in Brooklyn.

Identify and evaluate the torts implicated by the foregoing facts, taking care to consider, inter alia:

1) Whether Santa is best classified as an invitee, licensee, or trespasser at the Adams household, assuming that the State of Confusion continues to adhere to these categories;

2) Whether the doctrine of res ipsa loquitur applies to the defenestrated Chia Pet;

3) Whether Santa would be liable for the chimney damage in a “fence out” jurisdiction;

4) Whether any duty existed to protect the Chen and Davis children from the harms that they suffered; and

5) Whether Santa can be held strictly liable as a “distributor” of the defective Sniggie® blanket.

Happy Holidays!

Do you see what I’m seeing?  Basically, the same kind of “lost decade” that we’ve seen in other fields — ranging from employment, to the 99′s% wages, to innovation in the pharmaceutical pipeline.   Actually now that I think about it, if we take seriously Bainbridge’s idea that law is a “mature industry,” that curve starts to strike pretty [...]]]> The great state of Delaware, which brought you most of your corporate law and some nasty traffic jams in Newark, hosts the annual Punkin Chunkin competition this weekend.  The object is to throw a pumpkin (by mechanical means) as far as you can, without having the pumpkin become pie in midair.  I was looking at Wikipedia’s reporting of the “competition” results, and I noticed the following trend:

Do you see what I’m seeing?  Basically, the same kind of “lost decade” that we’ve seen in other fields — ranging from employment, to the 99′s% wages, to innovation in the pharmaceutical pipeline.   Actually now that I think about it, if we take seriously Bainbridge’s idea that law is a “mature industry,” that curve starts to strike pretty close to home.

It’s depressing to think that after only 20 years, the technology to create an air cannon that will throw a pumpkin over a mile has already reached its apparent apogee.  At this point, we might predict that rather than rewarding skill, the Punkin Chunkin competition really will turn on luck — puffs of wind, pumpkin skin viscosity, humidity, the passing pigeon’s path.  Nevertheless, we’ll probably come to believe that the winners in the pumpkin chunkin competition are virtuous and the losers defective, and that the results reflect some kind of fair & stable & natural ordering.  That view would be wrong.

I was talking to my college classmate Rafael Pardo (JE ’98, teaching at U.W.) at the AALS hiring conference, and we came to conclude that Jonathan Edwards College dominates Yale’s inferior colleges in the number (and quality) of law professor alumni it produces.  (And, needless to say, Harvard’s “houses” aren’t particularly relevant to this discussion.) Off the top of our heads, we came up with a bunch of folks — which, in a previous version of this post, I listed.  On reconsideration, and after being told that the AYA prefers not to use the search function in this way, I’m taking down the list in an abundance of caution. People should feel free to use the comment [...]]]>

If JE were around today, he'd be a law professor.

I was talking to my college classmate Rafael Pardo (JE ’98, teaching at U.W.) at the AALS hiring conference, and we came to conclude that Jonathan Edwards College dominates Yale’s inferior colleges in the number (and quality) of law professor alumni it produces.  (And, needless to say, Harvard’s “houses” aren’t particularly relevant to this discussion.) Off the top of our heads, we came up with a bunch of folks — which, in a previous version of this post, I listed.  On reconsideration, and after being told that the AYA prefers not to use the search function in this way, I’m taking down the list in an abundance of caution. People should feel free to use the comment thread to continue inter-college rivalries as they like. And folks who didn’t participate in odd & goofy Yale College traditions should celebrate the interdepartmental units in their respective undergraduate institutions that they belonged to, and tease those who didn’t.

As they say, JE Sux!  Anyone have a different view?

For less than the price of a new car, police said, Bridget Wismer, 33, of Brookside Park, Del., sold her month-old son to John Gavaghan, of Old Newtown Road near Tremont in Bustleton.

The transaction is believed to have occurred between Sept. 28 and Sept. 30, when police executed a search warrant on Gavaghan’s home and found him with the child, said Cpl. John Weglarz of the New Castle County, Del., police.

Police there said they began their investigation on Sept. 4, when members of Wismer’s family expressed concerns that she might be trying to sell the newborn to a man from Philadelphia.

Despite investigations and interviews, police were initially unable to confirm the allegations. Then Gavaghan was caught on [...]]]> Yikes.

For less than the price of a new car, police said, Bridget Wismer, 33, of Brookside Park, Del., sold her month-old son to John Gavaghan, of Old Newtown Road near Tremont in Bustleton.

The transaction is believed to have occurred between Sept. 28 and Sept. 30, when police executed a search warrant on Gavaghan’s home and found him with the child, said Cpl. John Weglarz of the New Castle County, Del., police.

Police there said they began their investigation on Sept. 4, when members of Wismer’s family expressed concerns that she might be trying to sell the newborn to a man from Philadelphia.

Despite investigations and interviews, police were initially unable to confirm the allegations. Then Gavaghan was caught on video filling out papers about the sordid transaction while at Delaware Park and Casino in Wilmington, Weglarz said.

“It sounds ridiculous . . . but he was on video surveillance seen completing documents regarding the sale of a baby,” Weglarz said. “It was clearly visible.”

This kind of illicit and unregulated sale of children is, of course, exactly what Posner said results from the current adoption regime.

(H/T:  Law student A.D.)

I’m talking, of course, about the Armenian genocide litigation.

Here’s a snippet from a recent story in the Armenian Weekly (with emphasis added):

In July, Armenian American attorneys sued the Republic of Turkey and its two major banks, seeking compensation for confiscated properties and loss of income. A new federal lawsuit [...]]]> As Tom Bell has noted, the Third Amendment gets no respect. It is as likely to be mentioned by comedians as by courts, and holds a position of honor among the odd clauses of the Constitution, where it is so infrequently used that even non-uses draw attention. But this neglected amendment has one potential application today, where it could play an important role in a somewhat high-profile case.

I’m talking, of course, about the Armenian genocide litigation.

Here’s a snippet from a recent story in the Armenian Weekly (with emphasis added):

In July, Armenian American attorneys sued the Republic of Turkey and its two major banks, seeking compensation for confiscated properties and loss of income. A new federal lawsuit was filed last week by attorneys Vartkes Yeghiayan, Kathryn Lee Boyd, and David Schwarcz, along with international law expert Michael Bazyler, against the Republic of Turkey, the Central Bank, and the Ziraat Bank for “unlawful expropriation and unjust enrichment.” The plaintiffs are Los Angeles-area residents Rita Mahdessian and Anais Haroutunian, and Alex Bakalian of Washington, D.C. The three Armenian Americans, who have deeds proving ownership of properties stolen from their families during the genocide, are seeking compensation for 122 acres of land in the Adana region. The strategic Incirlik U.S. Air Base is partly located on their property.

That’s right. Armenian-Americans are seeking to recover property seized by Turkey during the Armenian genocide. And significant portions of that land are currently used to quarter American troops.

The Third Amendment mandates that, “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” Does the Incirlik Air Base violate this provision? (Notably, Turkey has ignored the lawsuit, resulting in a default judgment in favor of the Armenian-American claimants.)

Based on my extensive reading in Third Amendment law [fn1], I think the case may indeed raise Third Amendment claims — but mostly, it brings up a complicated set of follow-up questions.

First, does the Third Amendment apply extraterritorially? This is outside of my expertise. I wonder if Boumediene would apply here. Is the U.S. air base enough control to extend Bill of Rights protections?

Second, what is the effect of the owners’ absence when the air base was built? I don’t think that homeowners need to be living in a home at the time of quartering for the amendment to apply. (On a related note, the Engblom court notes that the Third Amendment does not require fee simple ownership.) Presumably, the Third Amendment would give rights to refugees who flee their homes, and return to find them occupied by troops. However, other complicating factors here — particularly the passage of time — may bar claims.

And third, if there is a Third Amendment violation, what is the remedy? The amendment text itself doesn’t specify. Bell argues that the implied remedy for Third Amendment violations is similar to the Takings clause, and might include “recompense for any lost value that they could have exchanged on the market were it not for the government having seized their property, including the rental value of their homes and the value of any property stolen or destroyed.” However, Bell also notes that it “does not appear that the victims of quartering could recover for what may be their most grievous injuries: being forced onto the street, seeing strangers occupy and ransack their houses, and homesickness.”

At the very least, a Third Amendment claim would give Armenian-Americans a claim not just against an unresponsive defendant (Turkey) but also against the United States. This in turn could create additional U.S. pressure on Turkey to provide reparations to Armenians, or even to return the land in question.

All of which would be a welcome development for Armenian-Americans — and a big win for the Third Amendment.

(Hat tip to my colleague Chris Guzelian for discussion which prompted this post.)

(Image credit: Wikicommons photograph of the Etchmiadzin Cathedral.)

[fn1] “Extensive reading in Third Amendment law”: I read Tom Bell’s article and the Engblom opinion.

What explains this apparently counterintuitive result?  Why don’t I patronize this nearby beloved eatery more often, or at least some of the time?  My reason is simple:  The wait is way, way too long.  Pink’s doesn’t  just have a 15-20 minute wait at meal times like many [...]]]> There is a great hot dog joint here in Los Angeles called Pink’s Famous Hot Dogs.  I love their delicious chili dogs.  I am a huge fan of the location’s classic L.A. style (parts of the best film ever made were filmed on the site, and there’s a probably false rumor that Orson Welles got obese because he was addicted to Pink’s chili dogs).  They’re located a quick drive from where I work.  And I never, ever go there.

What explains this apparently counterintuitive result?  Why don’t I patronize this nearby beloved eatery more often, or at least some of the time?  My reason is simple:  The wait is way, way too long.  Pink’s doesn’t  just have a 15-20 minute wait at meal times like many local eateries. Rather, at almost any time of day, the line to get a Pink’s chili (or any other) dog snakes through a few switchbacks, up La Brea, and back into their parking lot, frequently lasting a good hour.  At peak times, the line has been said to approach 1.5 or two hours (and here, I’m going on word of mouth because, as you’ll gather from this post so far, I’m deterred by the long line and haven’t actually experienced it).

Classic L&E would suggest that this isn’t a paradox at all, and that the line merely reveals the unusually strong preferences of the public for Pink’s chili dogs, meaning that they really are worth the interminable wait.  And while this is an empirical question, and while tastes are subjective and highly variable, I can’t buy that account.  I can understand waiting in line for hours, say, to obtain critical medical services, or in a bread line in Soviet Russia where the only alternative is starving.  I can even imagine waiting in line for a couple hours to get tickets for a once-in-a-lifetime chance to see your favorite performer appear live.  But for chili dogs?  No way.  Something more than simple preference satisfaction has to be going on.

So what explains the Pink’s paradox?  Why is it that demand for these chili dogs continues to grow, even as the experience costs and actual costs associated with its food increase at an even greater rate (and appear to swamp the benefits of eating even the tastiest chili dog)?  And what does this tell us about the rationality (or irrationality) of line-waiting generally?  I discuss possible conjectures responding to each of these questions below the fold.

First, perhaps the Pink’s line is an example of simple groupthink, or herd behavior.  The simple, and less charitable, version of this story is that people tend to mindlessly repeat the common behavior of others, so that people unthinkingly wait too long for Pink’s chili dogs because others unthinkingly wait too long for Pink’s chili dogs, causing the line to creep ever longer, almost independently of the quality of the food.

But there’s a more charitable version of this argument that goes something like this:  With so many food choices in a large city, we can’t taste them all, and instead have to depend on signals to indicate what the best options are.  Our preferences are typically strongly influenced by what others already visibly prefer, and Pink’s line gives a hugely visible message that one could quite reasonably be influenced by.  Seeing a line of consumers snaking up La Brea is a more compelling advertisement than some print ad written by the restaurant’s own publicist, since it reflects actual, aggregated preferences.  It’s not crazy, and perhaps even reasonable, to at least want to try Pink’s to see whether a hot dog could be good enough to justify an hour-plus wait (though doing so more than once would be harder to explain).

Second, I’ve been assuming that waiting in line is just another cost to be weighed against the appeal of Pink’s hot dogs in a cost/benefit analysis.  But perhaps the story is more complicated.  It could be that there are nonobvious benefits to being in line.  One possibility is that the experience of waiting might make the subjective experience of eating the chili dogs seem better, because any food seems more “earned” after standing along a crowded L.A. street for 1.5 hours.  And others might actually find that waiting in line is an experience benefit, not an experience cost.  Someone could find that the wait for a Pink’s dog is a classic Los Angeles experience, something that allows people to watch the life of the city blur past, and makes for nostalgic stories to share in the future.  (Indeed, one news outlet recently reported that the Pink’s line is a great pick-up spot, apparently because you’re stuck there so long that you have to talk to the people around you just to pass the time.)

Third, if one regards Pink’s as both highly desirable and truly unique, then waiting in the line might make more sense than it initially appears to.  After all, a truly unique experience might merit more waiting (and other cost expenditures) as compared to one that’s more readily substitutable.  Hence the long lines at Disneyland, for example.  It’s not like you can go to the competitor across the street and ride their Matterhorn or see their Captain EO.  If you want Disneyland, you have to suck up the wait or skip it altogether.  Perhaps Pink’s is in this truly-unique category.  (NB:  It’s not clear whether Pink’s can be rightly thought of as truly unique.  While they have only the one classic location, and while that location requires a long-line-wait for dogs, they have also placed their food on offer at lots of other locations, as their home page indicates.)

Finally, in fairness to Pink’s (and kind of related to the above point), maybe they’re just that good.  As I’ve said several times, and as we all already know, preferences (especially preferences for food) are variable and highly subjective.  Perhaps the line-waiters know their preferences perfectly well and have concluded that Pink’s chili dogs are so unfathomably delicious that even an hour-plus wait is well justified for them.  I’m skeptical of this explanation, but it’s not so completely implausible that it shouldn’t at least be proffered.

Is there a general lesson here?  Maybe something along these lines:  Restaurants’ success and failure (like films’ success and failure) is starkly divided.  A few succeed spectacularly.  Most fail.  This may be because those few successful restaurants really are that much better than the rest, but I’m skeptical of this.  I think it may be more that a few restaurants gain advantages over others for reasons including quality food, effective PR, and good luck, causing customers to flock in droves to them (as true of Pink’s and many other eateries in LA and, I’m sure, other cities) and leaving other establishments to struggle.

What does this mean for the consumer?  My conjecture is not that lines are a useless signal of quality.  Very popular restaurants may well serve marginally better food.  But I also suspect that their massive popularity, evidenced by the queues surrounding Pink’s, is out of all proportion to this difference in quality.  Very long lines, then, could be an overly strong signal of merit, so that waiting in them is more costly than the restaurant’s somewhat higher quality warrants.

So if lines really do overstate the quality of the food there, then the wise gourmand might be well served to avoid any place with a long line and pick a B-list place, secure in the conclusion that the gained experience benefits of avoiding lines at the less popular restaurant will usually swamp the marginal costs in terms of slightly less good food.  (Just as some commentators recently suggested that S&P’s credit ratings of nations overdetermine public opinion, so that betting against them may be a wise move.)  This is, of course, an empirical question that would require some research to answer.  But I suspect that it would be the most delicious research ever.

This summer in Columbia was the summer of the seven year cicada cycle.  Cicadas are small locust like bugs that every seven years emerge from the earth and mate and then die.  The sing a delightful sound, that frankly can be deafening when they all decide to sing together (which is about two to three weeks per cycle). You may have heard [...]]]> So one of the things we all love about being a law professor is the flexibility to do what we do in lots of different places.  Each summer, for the last three years, I have split my time between Columbia Missouri and California teaching payment systems for Missou — a nice way to subsidize our family’s vacations back to the Midwest and the South.

This summer in Columbia was the summer of the seven year cicada cycle.  Cicadas are small locust like bugs that every seven years emerge from the earth and mate and then die.  The sing a delightful sound, that frankly can be deafening when they all decide to sing together (which is about two to three weeks per cycle). You may have heard that one Columbia Missouri vendor Sparky’s Ice Cream made a concoction of cicada ice cream before being advised by the Missouri Health Department to cease.  (I went to Sparky’s several weeks ago to try some Cicada ice cream, but they already were told to stop serving the concoction.  Thus, I had boring coffee ice cream instead).

So despite the fact that I did not get to enjoy ice cream with bug parts mixed in, I am happy to say that my summer in the south has been enjoyable. And there is still a month to go. This weekend we are sailing homemade cardboard box boats in a race on July Fourth — my father-in-law constructed two twelve foot cardboard canoes, insulated by gallons of paint.  We are planning a trip to Santa Fe in mid-July, and then back to California.

Summer is definitely my favorite time of year. I am going to blog later about how law students renewed my faith in baseball — reminding me once again of why summer is magical.   For now, I’ll just say, thank you for having me at Concurring Opinions.   I’m looking forward to sharing my thoughts on various things, perhaps post some pictures of our travels (including the cardboard boats), and talk about what I am writing and working on.

Marc

These are all extreme and freakish phenomena, but they speak to larger social dilemmas. What are the limits of personal [...]]]> [I've decided to put the whole post beneath the fold, since the topic reminds me of Leontius's Tale, and I don't want anyone to accidentally click through to something they don't want to see.]

Recently one of Rupert Murdoch’s properties carried news of the “164XXX” chest of a woman named Chelsea Charms. At a conference on Transhumanism & Design in New York a few days ago, participants talked about a “lizard man” who has forked his tongue and implanted bumps on his head to look more like a reptile. Yesterday, the “Botox Mom” lost custody of her daughter for injecting her with beauty aids.

These are all extreme and freakish phenomena, but they speak to larger social dilemmas. What are the limits of personal and parental autonomy when it comes to body modification? At least two thoughtful law review articles have addressed the topic.

Botox Mom

Alicia R. Ouellette’s article “Shaping Parental Authority over Children’s Bodies” addressed a number of dilemmas:

In the health-care setting, parental decisions to size, shape, sculpt, and mine children’s bodies through the use of nontherapeutic medical and surgical interventions are a matter of parental choice except in extraordinary cases involving grievous harm. This Article questions the assumption of parental rights that frames the current paradigm for medical decision making for children. . . . I argue that by allowing parents to subordinate their children’s interests to their own, the current paradigm distorts the parent-child relationship and objectifies children in violation of the moral principle, deeply embedded in American legal tradition, that no person, even a parent, may subordinate the life, liberty, or body of another for his or her own purposes.

Ouellette discusses a number of issues, such as the Westernization of Asian eyes, the “3979 cases of liposuction on patients between the ages of thirteen and nineteen in 2008,” and the stunting of a mentally disabled girl. Taking a bioethical perspective, the article “develop[s] a trust-based construct of the parent-child relationship, in which the parents are assigned trustee-like powers and responsibilities over a child’s welfare and future interests and are charged with fiduciary-like duties to the child.” It attempts to “construct in the health-care setting separates medical decisions that belong to parents from decisions that belong to children and those that should be made by a neutral third party.” I think it safe to say that it would be very difficult to defend the Botox mom’s purely cosmetic interventions to affect her daughter’s appearance within Ouellette’s ethical framework.

Extreme Self-Alteration

Does maturity give persons the right to do whatever they want with their bodies? Annemarie Bridy confronted this issue in Confounding Extremities: Surgery At The Medico-Ethical Limits Of Self-Modification. Her description of the following scenario reminded me of the role of the medical profession in the self-modification of Ms. Charms:

Controversy swept the U.K. in January of 2000 over public disclosure of the fact that a Scottish surgeon . . . had amputated the limbs of two able-bodied individuals who reportedly suffered from a condition known as apotemnophilia. The patients, both of whom had sought and consented to the surgery, claimed they had desperately desired for years to live as amputees and had been unable, despite considerable efforts, to reconcile themselves psychologically to living with the bodies with which they were born. Both surgeries were successful, and both patients, who had undergone psychiatric evaluation prior to the amputations, subsequently reported having no regrets. In the wake of a wave of sensationalistic stories in the media, the hospital at which the surgeries had been performed, the Falkirk and District Royal Infirmary, banned any future surgeries of the kind. Outraged local politicians promptly announced their intention to pass laws banning the procedure outright. One member of Scottish Parliament declared the surgery “obscene” and asserted that “the whole thing is repugnant and legislation needs to be brought in now to outlaw this” . . . .

[T]he automaticity of the politician’s response suggests, even as it implicitly denies, the need to examine the cultural dimensions of the paradox and to understand what is at stake for apotemnophiles and for society at large in the proscription of amputations performed on physically healthy individuals. Although apotemnophilia is by no means common, its effects can be quite devastating for those who count themselves among its victims. Consider the case of Philip Bondy, an apotemnophile who died from gangrene in 1998 in a San Diego motel room within days of a “back alley” amputation in Tijuana.

Though apotemnophilia may be rare, compulsive self-alteration is becoming more common, given both advances in cosmetic surgery and fickle and restrictive concepts of beauty and uniqueness. Bridy “consider[s] the legality of elective amputation in light of laws prohibiting mayhem and in the context of the regime of self-regulation that operates within the medical profession.” Psychiatry also promises a way around the paradoxes of self-determination via self-mutilation, via the diagnosis of “Factitious Disability Disorder” (FDD):

Under the factitious disability model, the apotemnophile seeks amputation not as a means of expressing a psychologically “authentic” self, but as a way of artificially manipulating the behavior of others to compensate for a perceived emotional lack. Not surprisingly, surgery does not emerge as a therapeutic option under the FDD model. Presumably this is because accepting apotemnophiles’ desire for amputation would be tantamount to authorizing their delusion that they are irremediably unlovable in their able-bodied state and, conversely, that they will become spontaneously lovable (and therefore loved) if they become disabled.

Roberto Unger once stated that “The closest equivalent to love in the outer coldness of social life is the practical organization of responsibility to care for others, nourished by the patient development of the ability to imagine other people’s experience.” Pleas for extreme self-modification deserve exactly this type of empathy. Those responding to such pleas must first imagine exactly what drives lie behind them, before any technological “quick fix” is offered. Unger, like Dante, is a great theorist of “love misdirected,” and the modern vanity industry’s most extreme excrudescences are some of its most obvious forms.

Fortunately, the “coils of polypropylene” that Ms. Charms uses are now illegal. But given the dizzying range of potentially self-harming body modifications now on offer, the German approach of discouraging or even banning their promotion might be a necessary additional step to protect the vulnerable.

Before the mid-1990s, tasked tended to be limited to usage relating to military matters.  For example, in legal scholarship, it appeared almost exclusively in military law journals.  But the word gradually crept into other settings in the late 1990s, in part after consulting firms began to talk that way.  Until recently, though, the usage was relatively scarce.  In legal scholarship, for instance, the word never appeared more than 100 times annually through 1998 and never more than 300 [...]]]> From the bad words department (e.g., concerning incent): “General Washington tasked the troops to battle on the Brandywine” may be a fine use of the transitive verb.  But is that so of “Professor Cunningham tasked the class to brief the Drennan case”?  It seems better to say “Cunningham assigned the class . . . . ”

Before the mid-1990s, tasked tended to be limited to usage relating to military matters.  For example, in legal scholarship, it appeared almost exclusively in military law journals.  But the word gradually crept into other settings in the late 1990s, in part after consulting firms began to talk that way.  Until recently, though, the usage was relatively scarce.  In legal scholarship, for instance, the word never appeared more than 100 times annually through 1998 and never more than 300 until 2004.  

In 2010, however, usage is set to exceed 1000 times.   Staggeringly, the word’s frequency has increased steadily nearly every year from 1989 through 2010: 16, 16, 22, 20, 27, 55, 56, 55, 75, 95, 105, 120, 141, 184, 218, 294, 368, 435, 591, 719, 880, 905 (partial count for 2010).  

This is lamentable.  The stultifying jargon of the military aside, the usage, in general and certainly in legal scholarship, sounds terrible and should be laid to rest.

1. Get education by home schooling or charter schools, not public schools—skip the Department of Education at all governmental levels.

2. Buy all medicine in Canada, not in the United States—skip the Food and Drug Administration and government-sanctioned patent laws.

3. Never fly commercial—take only charter flights and beat not only the crowds but the Federal Aviation Administration.

4. Buy all guns in interior states—minimize oversight by the Bureau of Alcohol, Tobacco and Firearms.

5. Conduct all political activities using a 501(c) to avoid public disclosure of political activity and regulation by the Federal Election Commission.

6. Submit all legal disputes to binding private arbitration—never use public courts.

7. Take advantage of all off-shore [...]]]> Heard around town amid the blizzard, some top New Year’s Resolutions Tea Party members are considering this year.

1. Get education by home schooling or charter schools, not public schools—skip the Department of Education at all governmental levels.

2. Buy all medicine in Canada, not in the United States—skip the Food and Drug Administration and government-sanctioned patent laws.

3. Never fly commercial—take only charter flights and beat not only the crowds but the Federal Aviation Administration.

4. Buy all guns in interior states—minimize oversight by the Bureau of Alcohol, Tobacco and Firearms.

5. Conduct all political activities using a 501(c) to avoid public disclosure of political activity and regulation by the Federal Election Commission.

6. Submit all legal disputes to binding private arbitration—never use public courts.

7. Take advantage of all off-shore opportunities, especially tax shelters, to minimize payments to the Internal Revenue Service.

8. Raise financial capital using private equity, not an IPO—skip regulation by the Securities and Exchange Commission.

9. Use off-balance sheet financing as much as possible—skip adherence to statements of the Financial Accounting Standards Board.

10. Guard US citizenship jealously—subject immigrants to strict oversight and law enforcement by the U.S. Border Patrol.

Privatizing life has never been easier!

Amazon cited a clause in its provider contract where customers represent that they own all content posted on the site. WikiLeaks obviously breached that representation, giving amazon contractual grounds to terminate. Despite amazon’s stern denials, Senator Joseph Lieberman’s government affairs committee acknowledged that its staffers hectored the company about letting WikiLeaks [...]]]> Public officials interfere with private contracts too often. But most private parties have the guts to push back when deciding that freedom of contract and the law of contracts trump officious intermeddlers from the state. That friction explains stern denials by amazon.com that government pressure influenced its decision to terminate its Web-server lease agreement with the notorious WikiLeaks, publicist of precious secrets, including a cache of diplomatic cables roiling public officials in capitals across the globe.

Amazon cited a clause in its provider contract where customers represent that they own all content posted on the site. WikiLeaks obviously breached that representation, giving amazon contractual grounds to terminate. Despite amazon’s stern denials, Senator Joseph Lieberman’s government affairs committee acknowledged that its staffers hectored the company about letting WikiLeaks use its space. The corporate denials are thus dubious. But at least amazon is right to cite its contract and the clear clause in it that makes its termination valid and at least the staffers were merely requesting information, rather than the Senator applying direct pressure.

In other visible examples of political intermeddling in contractual relations, at least one side has not come out looking so good. Three examples illustrate.

1. In March 2009, Senator Charles Grassley, Republican of Iowa, and President Barak Obama pressured American International Group (AIG) to dishonor contractual commitments to pay bonuses to employees of the beleaguered insurance giant taken over by the federal government. The company told the government to go to hell, in effect, proclaiming the sanctity of contracts. Neither the government nor the company ever considered the many valid grounds AIG had to excuse its contractual obligations. The government did not know the facts and the company obfuscated and stonewalled until public interest faded. 

2. In January 2009, Representatives Dennis Kucinich, Democrat of Ohio, and Ted Poe, Republican of Texas, pressured Treasury Secretary Timothy Geithner to induce termination of a co-branding and stadium naming contract between the New York Mets baseball team and Citigroup, the teetering bank rescued by massive infusion of federal bailout funds. The company likewise thumbed its nose, stressing that its deal with the Mets made eminent business and economic sense. The members of Congress acknowledged that they had never seen a copy of the contract.

3. Campaign managers for President George Bush in September 2004 fanned the flames for CBS to terminate its contract with Dan Rather, after the anchor broadcast a story critical of Bush’s service in the National Guard during the Vietnam conflict that turned out to have been based on erroneous reporting. CBS put Rather on the bench for 15 months and then fired him, paying him about $12 million pursuant to his contract but bruising the star’s ego and diminishing his stature. It did so in meticulous conformity with their contract. Rather lost a lawsuit claiming CBS was in breach. Despite compliance, the company did not look good bowing to partisan political pressure and the campaign of a sitting President looked childish in the finger-pointing.

So far, Lieberman’s staff and Amazon look all right. But, of course, the story is young. More leaks may come.

But nature does still pose a few threats to us. Reacting to a recent bear attack in Yellowstone, the American Family Association’s Director of Issues Analysis has stated that “there is no number of live grizzlies worth one dead human being. If it’s a choice between grizzlies and humans, the grizzlies have to go. [...]]]> Recently American thought on ecology has taken a turn in a religious direction. And it’s not toward that boring old talk about a sustainable creation. Rather, a contender for the House Energy and Commerce Committee chair has “maintain[ed] that we do not have to worry about climate change because God promised in the Bible not to destroy the world again after Noah’s flood.” Glad that’s settled.

But nature does still pose a few threats to us. Reacting to a recent bear attack in Yellowstone, the American Family Association’s Director of Issues Analysis has stated that “there is no number of live grizzlies worth one dead human being. If it’s a choice between grizzlies and humans, the grizzlies have to go. And it’s time.” Sharks, rattlesnakes, scorpions, pit bulls, and even golden retrievers had better watch out!

Perhaps Werner Herzog’s film Grizzly Bear shaped Fischer’s imagination. As Herzog stated in the film:

And what haunts me, is that in all the faces of all the bears that [the protagonist of Grizzly Bear] ever filmed, I discover no kinship, no understanding, no mercy. I see only the overwhelming indifference of nature. To me, there is no such thing as a secret world of the bears. And this blank stare speaks only of a half-bored interest in food. . . . I believe the common character of the universe is not harmony, but chaos, hostility, and murder.”

Perhaps Fischer is just throwing back at the universe its nasty tendency to disregard us.

Photo Credit: Joseph Wu Origami.

That may sound astonishing for an actor whose 50 roles in big films over 20 years make him among the highest paid people in the world. Cage’s problem apparently is that, despite the massive cash, he still lives beyond its means.

Besides an apparent spending compulsion, during the real estate boom of the 2000s, he acquired dozens [...]]]> Include the Hollywood-based actor Nicolas Cage on the list of victims amid the real estate crisis and ensuing foreclosure flood. A California court last week ordered him to honor the judgment of a Nevada court by paying $2.4 million to a lender who foreclosed on the actor’s Las Vegas resort home. As with many other borrowers, though, Cage doesn’t have the money to pay.

That may sound astonishing for an actor whose 50 roles in big films over 20 years make him among the highest paid people in the world. Cage’s problem apparently is that, despite the massive cash, he still lives beyond its means.

Besides an apparent spending compulsion, during the real estate boom of the 2000s, he acquired dozens of properties whose prices seem to have risen catastrophically just before he bought them, and fell to the depths in the last three years. Not having any savings to buffer the losses, he’s in default not only on housing bills but owes millions in back taxes.

Financial embarrassment is compounded by bad publicity about his lifestyle. Some he brought on himself. By filing a $20 million lawsuit blaming his straits on his manager, Samuel Levin, Cage provoked a counterclaim with mortifying allegations of a life out of control, even by Hollywood standards.

The allegations in Cage’s complaint sound far-fetched; Levin’s counterclaim sought a mere $120,000 for unpaid fees, small under a contract that paid Levin 5% of Cage’s income since 2001 (running to many millions). That may explain reports saying the suit and countersuit have been dismissed. But some of the pleadings are salacious–with lessons for everyone.

From Cage’s Complaint

Nicolas Cage is one of the most sought after and highly paid actors in the world. . . . [He] is a world renowned Academy Award winning actor, and is one of the most highly respected and sought after actors in Hollywood, having appeared in excess of fifty (50) motion pictures during the past two decades.

[Cage has paid Levin] millions of dollars. Cage has been forced to dispose of significant assets. [Cage] owes millions of dollars in back taxes, interest and penalties . . . .

Levin recommended and facilitated numerous highly risky and speculative real estate investments; failed to properly diversify Cage’s investment portfolio; failed to obtain proper and adequate insurance on behalf of Cage . . . ; and misrepresented and concealed Cage’s true financial status at the time that [Cage] acquired assets and investments.
 
From Levin’s Answer and/or Counterclaim

Cage’s allegations of misconduct . . . are entirely false. . . . [Cage ignored Levin's advice to] a) limit extravagant and arguably irresponsible spending; b) acknowledge and act on the advice from Levin that sufficient money would not be available to pay his income taxes if he did not significantly curtail his spending; and c) take responsibility for monitoring his own financial affairs.

[Cage] spen[t] millions of dollars annually to support a lavish lifestyle . . . which was above even his considerable means as a successful Hollywood actor.

Between 2001 and 2008, Mr. Cage purchased numerous personal residences in places such as New York, Rhode Island, New Orleans (Louisiana), Newport Beach (California), San Francisco (California), Las Vegas (Nevada), Bavaria (Germany), Bath (England), the Bahamas, and many other places.

By 2001 Cage had already squandered tens of millions of dollars he had earned as a movie star, he was deeply in debt, and he owed millions of dollars in . . . income taxes, with no funds available to pay the tax debt. . . . Levin warned Cage that he needed to earn $30,000,000 a year just to maintain his lavish lifestyle.

Levin advised, and Cage agreed, that [he must] accumulate, over a period of years, a cash “cushion” of at least $10,000,000 and preferably as much as $20,000,000. . . [To that end] with Cage’s consent, Levin sold off Cage’s $1.6 million comic book collection and sold more than a dozen of his automobiles.

[In the next few years,] Cage had a string of hit films, his earnings soared, and Cage abandoned the economic conservatism he had agreed to with Levin. . . . As Levin sold off automobiles, Cage bought new ones.

[Cage] set off on a spending binge of epic proportions, and by July, 2008, Cage owned 15 palatial homes around the world; four yachts (one for the Caribbean, one for the Mediterranean, one for Newport Beach and one for Rhode Island); an island in the Bahamas; a Gulfstream jet; and millions of dollars in jewelry and art.

[W]ith increasing urgency in 2006-2007, Levin implored Cage to stop buying real estate and urged him to reduce his real estate holdings, warning Cage that the financial press was filled with references to a “real estate bubble.”

Cage rejected this advice and continued his compulsive spending. As a result, in 2007 Cage’s shopping spree entailed the purchase of three additional residences at a total cost of more than $33,000,000; the purchase of 22 automobiles (including 9 Rolls Royces); 12 purchases of expensive jewelry; and 47 purchases of artwork and exotic items.

Cage also spent huge sums taking his sizeable entourage on costly vacations and threw enormous, Gatsby-scale parties at his residences.

The pinnacle of Cage’s spending spree came with his quixotic acquisitions of Midford Castle in England and Schloss Neidstein Castle in Bavaria.

[Cage] continued to spend uncontrollably. Levin described the folly of several other well-known entertainers who compulsively overspent their way into bankruptcy, and warned Cage “it could happen to you.”

[Cage didn’t listen] and was even motivated to continue it (and disregard Levin’s advice), because Cage made millions of dollars in capital gains from buying and selling his residences. However, when real estate values plunged in 2008, most of Cage’s residences turned “upside down,” just as the global credit crunch made it impossible to cover Cage’s endless cash calls by borrowing more money. Since he had never accumulated any cash reserves (as Levin had urged), even with his considerable earnings as a movie star, Cage fell further and further behind on his personal debts, mortgages, and income taxes. . . .

Co-Op Note: Levin’s Counterclaim notes that Cage’s real name is Nicolas Coppola and uses that name throughout; I’ve changed all such references from Coppola to Cage.

Hat Tip: Christa Laser

What’s your Eigenfactor?  Scholars can find out now by looking at their scholarship page on the Social Science Research Network. Since inception a decade ago, SSRN ranks scholars by downloads; in the past few years, it refined that coarse measure using a separate list of citations, but only to other papers in SSRN.  Now comes the eigenfactor, an integrated metric of scholarly influence.

This will be an interesting addition to the dashboard data used in  studies of scholarly influence .  All these figures, old and new, are endlessly contestable.   The new figure adds a new ranking column which, naturally, differs from the downloads or citations columns. 

Often, the difference is of limited significance: scholars with high downloads often have high citations and now have high Eigenfactors.  But sometimes the [...]]]>

What’s your Eigenfactor?  Scholars can find out now by looking at their scholarship page on the Social Science Research Network. Since inception a decade ago, SSRN ranks scholars by downloads; in the past few years, it refined that coarse measure using a separate list of citations, but only to other papers in SSRN.  Now comes the eigenfactor, an integrated metric of scholarly influence.

This will be an interesting addition to the dashboard data used in  studies of scholarly influence .  All these figures, old and new, are endlessly contestable.   The new figure adds a new ranking column which, naturally, differs from the downloads or citations columns. 

Often, the difference is of limited significance: scholars with high downloads often have high citations and now have high Eigenfactors.  But sometimes the differences are wild: there are people who rank at the top of downloads but lack many citations at all.    A few of those still have an impressive Eigenfactor rank, but most tumble way down the ladder.   

More striking is how the rank differences among these columns are less pronounced among economists and finance professors, as a cohort, compared to law professors, as a group.  Based on an impressionistic skimming of the columns for the first few hundred, there’s greater stickiness among non-law profs than among law profs. 

Economsits with high downloads still tend to have high Eigenfactors and vice versa; for law profs, though, other than the download leader, Lucian Bebchuk, even those with the highest downloads (ranked in the single or double digits), bounce way down the Eigenfactor rankings into the 200s, 1000s, 5000s or deeper. 

Many theories appear.   Mine attributes this to the student-gatekeeping function at law reviews.  Nearly every piece of legal scholarship gets posted and published because the selection process is modest; the filter comes in citation practice.   The filter in other social sciences is extremely tough ahead of publishing and posting; the practice of citation isn’t much of a filter at all. 

There may be other reasons for this impressionistic difference too.  Perhaps legal scholarship just isn’t as hot out there in the networks that Eigenfactor captures, compared to economic and financial scholarship.  But, no, that doesn’t seem right, does it?

[Exhibit] text says, “During the period in which humans evolved, Earth’s temperature and the amount of carbon dioxide in the atmosphere fluctuated together.” An interactive game in the exhibit suggests that humans will continue to adapt to climate change in [...]]]> Dan Farber has recently complained that many “Senate candidates are signatories of the Koch Industries’ Americans For Prosperity No Climate Tax pledge.” I must assume that Prof. Farber has not heard about technological fixes for the climate change problem. As Jane Mayer reports, the “David H. Koch Hall of Human Origins, at the Smithsonian’s National Museum of Natural History, is a multimedia exploration of the theory that mankind evolved in response to climate change.” The exhibit proposes practical responses for the future:

[Exhibit] text says, “During the period in which humans evolved, Earth’s temperature and the amount of carbon dioxide in the atmosphere fluctuated together.” An interactive game in the exhibit suggests that humans will continue to adapt to climate change in the future. People may build “underground cities,” developing “short, compact bodies” or “curved spines,” so that “moving around in tight spaces will be no problem.”

In other words, don’t worry, be Eloi! “Short, compact bodies” might also fit the new 23-inch airline seats better. Perhaps critics of Social Security and the Air & Space Museum can develop an exhibition based on Regis Debray’s Modest Proposal: A Plan for the Golden Years.