LawCulture

Avoiding the Dare

      Some months ago, I blogged about "the dare doctrine," suggesting that South Dakota's law banning all abortion except to save the life of the mother was akin to a game of chicken, daring the Supreme Court to void South Dakota's own interpretation of the breadth of the privacy right in our Constitution.

      Yesterday,  a majority of South Dakotans voted to repeal that state law.  I note the back and forth here.  The Supreme Court in 1973 decides Roe v. Wade, not a popular decision then, but one that whose subject matter (permissive abortions) had been gaining currency in the state legislatures. From 1973 onward, some describe the anti-choice/pro-life movement as a "backlash" against an "activist" Roe court. Since then, state legislatures and the U.S. Congress constantly debate how to put fetal rights back on the table.  Constitutional amendment? State laws restricting access to abortion? The latter took hold (see Casey) and grew stronger until in 2006, South Dakota legislators pass the law that restricts all abortions except to save the life of the mother. This openly defies Roe v. Wade, pitting the sovereign state of South Dakota against the Supreme Court. Which sovereign decides the scope of the privacy right? Instead of taking the constitutionality of that law to court, South Dakotans mobilize to repeal the law that their elected officials voted onto the books. This is an instance where truly "the people" are sovereign and have spoken -- not the elected officials purporting to speak for the people, and not the courts who, in issues of fundamental rights, also purport to speak for “the people” as individuals as against the tyranny of the majority. The people of South Dakota had the last word on their constitutional rights … at least for now.

Election Day -- Swinging the Vote

Folks over at blackprof.com have posted this ad for comment, apparently run by the New York Republican State Committee. Is this a sign of desperation? It surely is "old school," as Christopher Bracey says. But I'll bet the folks conceiving of this ad are hardly old -- part of a new generation unashamed of harnessing racism for political ends. Are those promoting these ads hoping that the public will not get the message of racial antagonism?  Is there an upside to these ads?  Maybe ads like this should make us grateful for the First Amendment insofar as it encourages racists to show their true colors (pun intended).

An Experiment on Blog Connectivity: The Rancid, The Real and the Raw

I will admit to being slightly naive when it comes to all things blogosopheric. Indeed, my friends think I am naive when it comes to a lot of things. But I am also cynical and wonderous at the same time.  For example, when I learned that after my friend Bill McGeveran posted something on his blog about the discussion board XOXOHTH, dozens of bloggers posted comments, many rude, scathing and  mean (would you ever say these things to a person's face??). My cynical side said, people have too much time on their hands. What is the point of this kind of banter? Much of it doesn't even make sense. And what does it say about the future lawyers of our world (assuming most of these folks are law students, which I gather is debatable) that they are spending their time THIS way? My wonderous side thought another thing: is this a computer program spitting out this garble? Has some very bright person designed software to quickly connect to blogs that mention theirs, create links between the blogs in cyberspace and then post comments, however gruesome the contents of the links are? The impression is a whole community of people quickly converging on Bill's site to recuperate the reputation of those who spend time on XOXOHTH.  But the overwhelming feeling I got was that this wasn't a diverse group of people (it wasn't a loud cry from the masses that support and celebrate community blogs like XOXOHTH) but instead just a few folks who want to fill up the comments space, who want to appear to be surrounded by comrades but who are really alone in front of a lap top. Smart as they may be (did they design a program or are they just very fast, very coordinated bloggers?), I wonder how many people are really paying attention.  But perhaps I am just naive. As I said, this is an experiment.

Constitutional Popular Culture

I spend a lot of time in my constitutional law class discussing with my students how the predominant rule of Marbury v. Madison (that it is the Supreme Court who "says what the law [the Constitution] is" ) is not how things work in practice. Congress interprets the Constitution and implements that interpretation through, among other ways, its section 5 powers under the Fourteenth Amendment (see Katzenbach v. Morgan; cf. City of Boerne), to say nothing of its section 2 powers under the Thirteenth Amendment (see Jones v. Alfred Mayer).  The President interprets the Constitution and implements that interpretation through, among other ways, his "take care" powers (most obviously these days through the current executive's use of signing statements).  State elected officials also swear oaths to the Constitution, promising that their duties be discharged in conformance with that supreme document, which would presume thoughtful attention to what that document demands (what it means).

I would guess that many of us have not sworn oaths to uphold the Constitution, but that does not preclude us from interpreting it and making it meaningful in and through our daily lives. Indeed, as many constitutional law professors can probably verify, law students come to constitutional law class misbelieving the scope of their constitutional rights. What contributes to that misbelief?  So much of our every day life, our popular culture, advertising.  See this company, for example, whose advertisement I pondered on the way to work. Against a red, white and blue background, the ad copy read: "Divided We Stand, United We File." It had a picture of two wedding rings, one plain the other diamond-laden. And then it said underneath the rings and next to an image of the cracked liberty bell, "We, The People."  I had no idea what the ad was for -- gay marriage (was this about tax fraud, filing federal forms seperately and state forms jointly (at least here in Massachusetts)? A ballot initiative?  I got to thinking about all the ways these ubiquitous phrases could be meaningful. When I finally made my way to the front of the subway car, I saw it was a document filing service. What??

The language of our constitutional polity -- united and divided (federalism?), "we, the people," (democracy and individuality) -- circulates everywhere, consciously and unconsciously. Perhaps this is just too obvious for most readers, but as I slog through some difficult cases with my constitutional law students, I am reminded by them that this constitutional law stuff feels unfamiliar to them, strange, difficult -- at least the constitutional law stuff we talk about in class. The "We, the People" advertisement, well, they knew that one. That one was familiar.  And so I got to thinking more about how their misbelief (usually in the form of thinking we each have broader and more constitutional rights than we actually might) works to constitute a more generous (and perhaps more contentious) polity. For example, invoking the rhetoric of equality and privacy and individual freedom all in bald terms helps claims a stake in these concepts for the on-going vitality and deliberativeness of our society. Whether they are claimed correctly or not does not seem to be what matters. Indeed, contested claims -- more circulation and more varied interpretations of constitutional meaning -- may be what keeps us talking. At least such is the case in my constitutional law class.

So THAT'S why I haven't found time to blog in months. . .

From today's NY TImes:

While married mothers and married fathers were approaching “gender equality,” measured by total hours of work, the researchers found stark differences among women. These disparities suggest why working mothers often feel hurried and harried.

Over all, the researchers said, employed mothers have less free time and “far greater total workloads than stay-at-home mothers.” The workweek for an employed mother averages 71 hours, almost equally divided between paid and unpaid work, compared with a workweek averaging 52 hours for mothers who are not employed outside the home.

On average, the researchers said, employed mothers get somewhat less sleep and watch less television than mothers who are not employed, and they also spend less time with their husbands.

The article describes a new book, Changing Rhythms of Family Life, which sounds well worth reading.  In all that free time. . . .  yeah, right.

AALS Section on Law and Humanities

The AALS Section on Law and Humanities is in the midst of preparing its Fall AALS Law and Humanities Section Newsletter.  Kristin Brandser, Chair of the Section, is seeking information about any of the following to report in the newsletter: upcoming or recently held conference or symposia; call for papers/submissions; recent or forthcoming law and humanities publications; member activities; essay contests for students; job openings; other items of interest to the section membership. 

Please send information about any of the above to [email protected] by Wednesday, October 25, 2006.  The Chair thanks you.

Battle of Fundamentals

As a student of the visual, I could not help but be startled by this photograph on the front page of Sunday's Boston Globe. It reminds me of so many other incarnations of two-dimensional larger-than-life Leaders. Engrave his head in stone and he could be from the Soviet era rather than the 21st century digital revolution. Put his voice over a megaphone and blast him through the public squares, he could be from, well, just about any other fundamentalist or totalitarian regime that aches to get inside the head of the people, to control thought and action. That the caption of this photo is "Bush Brings Faith to Foreign Aid" only furthers the parallel. This is not an image of a leader who seeks to persuade through rational discourse or democratic dialogue. It is an image of a leader who lords over the crowd and says "follow me, because I say so." Like the discourse of religious fundamentalism, there is nothing about this image of the "leader of the free world" that implies "freedom."

The Value of Torture

       In teaching constitutional law, a theme I develop throughout the course is whether there are anchors for our interpretation of the constitution's text, whether there are stable values or ideals that guide our application of the constitution to the new facts presented such that we can both evolve over time as well as recognize in the interpretation a societal identity, a continuity of community that was founded on these central principles in 1776 and 1789. 

       In Justice Holmes' famous dissent in Lochner, he wrote that the constitution is made for "people of fundamentally differing views," speaking, of course, of various theories of economics and social justice debated between the majority and dissents in that case.  But Holmes' comment begs the question that I find myself asking over and over this past day as I contemplate how the U.S. House of Representatives could have passed the so-called "torture bill" by a majority of 253 to 168.  Although sufficiently capacious to maintain differing views of "equality," "free speech," and "commerce" can we really say that the constitution makes room for the purposefully threatening, degrading, humiliating and violent treatment of prisoners of war? (As Marty Lederman writes here, the treatment may apply to more than prisoners of war, but to any "enemy combatant" so designated by the Commander in Chief.)

       On September 11, 2001, I felt vengeful. I felt violent. I recognized in me a common human reaction to hate-motivated violence: a like response of hate-motivated violence.  I wanted the terrorists who killed the September 11 victims and the terrorists' loved ones to die.  But as much as this might be a common human response, it seems to me obvious it is not the right response. It is not the good response. It is not the moral response. It does not promote peace or justice. It repeats and continues hatred and violence.

       And so why would we, as a society founded on liberty, opportunity, fairness, a society that has grown into the value of equality -- all of which are manifested in the constitution -- why would we condone the tactics proposed by the torture bill? (In addition to being so vague on what constitutes prohibited torture, the bill also removes the right to petition for liberty -- the right to file a writ of habeas corpus -- for anyone so detained. Can you imagine being held against your will indefinitely with no way to contest your detention because someone in the executive department has labeled you an enemy combatant? If that isn't tyranny, I am not sure what is. Cf. US Const. Art. 1, Sec. 9, cl. 2 (“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it”) and Ex parte Milligan, 71 US 2 (1866) (only the privilege, not the writ itself, is suspended, such that a court can pass on the constitutionality of the suspension).  Due process of law, prohibitions on cruel and unusual punishment, these terms might be vague, but certainly they prohibit waterboarding and sleep deprivation.  (Were police ever to use such tactics against criminal suspects there would be no question of a constitutional violation.)  There are lots of good arguments as to why these kinds of tactics are futile and bad policy -- they produce unreliable information and excludable evidence, they model a behavior we have criticized other countries for employing.  But isn't the best reason for saying "no" to the torture bill that our society's values as embodied in our constitution require we treat even the most vile of human beings as human beings? Except for losing control over our impulses and letting our hatred and fear get the better of us, why would we destroy the reputation and identity of the United States that is embodied, hopefully, in the promise that is our constitution, by condoning the violence that is being done to these prisoners?

Policy in the form of a Comic Strip. Why not?

         I genuinely enjoy reading through the piles of reprints I am sent colleagues over the year (truly, I do!). I tend to fetishize the reprint, the mini-books with their mottled binding and neat lettering. I recently received a very unusual reprint, one that I already covet but am so impressed with I am already sharing it with others. For those not on the reprint list, Keith Aoki, James Boyle and Jennifer Jenkins have authored and designed “Bound by Law? Trapped in a Struggle She Didn’t Understand,” a comic book treatise on copyright law and fair use published through the Duke Center for the Study on the Public Domain. It is fantastic – not only because it clearly lays out the historical evolution of copyright and the problems of “permissions culture,” but because it explains the basics of copyright doctrine in terms that any interested reader will understand. This is, the authors tell us, part of their project. They write in their Afterword “For some strange reason, none of our intended audiences seem eager to read scholarly law review articles. What’s more, there is something perverse about explaining an essentially visual and frequently surreal reality in gray, lawyerly prose. Finally, what could better illustrate the process we describe than a work which ahs to feature literally hundreds of copyrighted works in order to tell its story, a living exercise in fair use? Hence this book.” 

         This got me to thinking more about various forms a law review article could take other than the predictable one symbolized by the “road map paragraph.”  There has been plenty of blog traffic on the variety of legal scholarship (what’s in, what’s out, what counts, what doesn’t, see here and here and here, to link to only a few). But what about thinking more deeply about why we do legal scholarship. Who are we trying to reach with our arguments? Are we trying to reach an audience at all? Assuming we are, why not tailor our arguments for those readers? Other academics? Judges? Lawyers? Elected officials? Certainly, sometimes that means aiming to publish in the top journals in a fairly conventional way. But sometimes that might mean making a comic book; it might mean making a short documentary; it might mean creating podcasts; it might  mean writing across the disciplines; it might mean writing novels. There are some law professors who are more actively engaged in a popular journalistic enterprise and some who are novelists. Aoki et al are the first law professor comic book creators that I know of. Any filmmakers out there? Visual media seems the natural evolution of things, but that may be my own bias.

Everything Bad is Good For You

Last week Steven Johnson spoke at my university and it got me to wondering what people on this list might think of his book, Everything Bad Is Good For You:  How Today's Popular Culture is Actually Making Us Smarter.  Apart from having a great title, Johnson has an interesting thesis.  Contrary to the likes of George Will who argues that we are becoming an "increasingly infantilized society," Johnson argues that the growing sophistication of contemporary popular culture (in the form of games, television, film, and the internet) actually serves to sharpen our cognitive processes.  What do LawCulturers make of this thesis?  What import might it have for the study of law and culture?  For understanding the relationship between law, culture, and democratic authority?

Parody and Pop Culture

Thanks for the warm welcome.  I've been an avid (if lurking) reader of LawCulture for some time now and am very happy to be upping the ante by becoming a regular contributor.

I'm interested in parody and pop culture as tools that can help to disrupt discourses that are stuck or recalcitrant to change.  The humor behind parody has great disruptive potential, as does the populist sensibility that informs certain sites of culture.  In the piece of mine that Jessica mentioned in her post, I use a soap opera's parody of patriarchal authority to send up and disrupt the attachment to the founding fathers that arises again and again in contemporary constitutional interpretation, even amongst liberals like Ronald Dworkin.  That the disruption comes from a populist source in the form of a soap opera is a great bonus, as scholars have long been concerned that a lack of democratic authority in contemporary constitutional discourse seems to undermine judicial legitimacy. 

Here's another example I've been thinking about lately.  In a class I taught recently, I used three rock videos to show how pop culture and parody can both support and subvert sex and gender norms.  (Each of these videos is available on youtube.com) We started out with Robert Palmer's classic 80's video "Addicted to Love," (click here to view) in which Palmer fronts a band of seemingly identical, heavily made up women, "playing" instruments behind him, looking vacant and passive, occassionally licking their lips seductively or just appearing as legs, and other body parts, with Palmer singing about how they're gonna have to face that they're, well, addicted to love.

We then looked at Michelle Shocked's parody of Palmer's video, "On the Greener Side," (click here to view)which turns the Palmer video on its head by fronting Shocked and objectifying the boys in the band, showing them posing in bathing suits and so forth, while she sings about how their love is always greener on the greener side.  While Shocked's video highlights the absurdity of the sex and gender norms foregrounded in the Palmer video by exagerrating them and placing them in a different context, her reversal can't hold a candle to Shania Twain's "Man, I Feel Like a Woman."  (That's right, Shania Twain.)  (click here to view) In her video, Twain starts out as the frontman, wearing clothes and adopting poses similar to Palmer's in the original video. By the middle of the video she has stripped off the male costume and transformed into a female, looking much like the women in the original video, perhaps suggesting the absurdity not only of the male and female identities portrayed there, but also of the stability of gender identity itself.  How many more identities might be lurking beneath that costume?  Maybe we'll find out in a subsequent video!  Anyway, doesn't Twain's transformation have the effect of destabilizing identity more fully than Shocked's reversal?

In any case, these videos opened the door for a wide ranging conversation about sex and gender norms that might not have been as available to the class without the assistance of these performances drawn from pop culture.  Thanks to the students for putting me on to the Shania Twain video.

Welcome!

We welcome Susan Burgess, a political scientist and legal scholar who teaches at Ohio University, as the newest contributor to our blog. Susan and I met years ago at a wonderful short course on law and popular culture hosted by the American Political Science Association. She gave a talk called "Who's Your Daddy? Legitimacy, Parody and Soap Operas in Contemporary Constitutional Discourse," which is forthcoming in the Law, Culture and Humanities journal. Her humor and insight into all things law and culture precede her. We are very glad to have her aboard.

Appeal of the Real

Yesterday, the New York Times reported the revelation that "Lonelygirl15" is a New Zealand actress Jessica Rose and not a homeschooled teenager named "Bree," who has a computer obsession and time on her hands.  For the past four months, "Bree" has been uploading videos of her trials and tribulations onto YouTube.com, drawing fans (many of them) from all walks of life.  "Bree" had so many fans, that the YouTube Lonelygirl15 videos spwned a fan site devoted to Lonelygirl15 gossip, which yesterday was expressing feelings of loss and disappointment at the exposure of "Bree" as a fictional character.  "Bree" and Lonelygirl15 was a film project of Creative Artists Agency and seem to have been some sort of test drive for a major motion picture.  The New York Times reports that the revelation was in part due to a fan finding a trademark application for Lonelygirl15 that reveals the enterprise as a commercial endeavor. 

Whether because of its commercial nature or its "fraud" (as one contributor to the project worried), fans admit that the appeal has burst. The fantasy and intrigue was sustained because "Bree" was believed to be real. Now that she is truly fantastic, the site -- its draw -- has waned significantly, if almost entirely. "Part of the appeal of the series was that the serious-minded, literate Bree offered an unbeatable fantasy: a beautiful girl who techy guys had something in common with. On learning that Ms. Rose was an actress whose interests, unlike the scientific and religious issues that fascinated Bree, ran to parties and posing, one fan wrote, 'Very cute, but she's realy not into Feynmann and Jared Diamond! (I'm heart-broken ... But a wonderful actress, had me fooled into thinking she was a geek like me.)'"

So I have these two thoughts about Lonelygirl15. For readers of this blog, I may sound like I am repeating myself (see "More on L'Affaire Frey" and the A3Groopie expose). But the repetition in life is worthy of repetition on this blog (not to assume there is a distinction, mind you).

One point is a trademark issue: who's to say that a trademark application can't be for a person's moniker, their call-sign, or whatever you call your "stage name" on-line. Certainly, that is how trademark's function -- as a source identifier that is distinctive of you or your goods and distinguishes your goods (or you) from those of another (or others). Use in commerce is a prerequisite, but how much use and how much commerce is a much debated question. And, thanks to the anonymous source doctrine, it doesn't matter that people don't know the source of the good (it doesn't matter that people don't know who "makes" Lonelygirl15), as long as they understand the source is consistent. It seems Lonelygirl15's trademark application shouldn't necessarily have been a tip off of "Bree" fictional nature. The fact that it was a tip-off says something interesting about how her fans think of the role of commercialization in peddling "fantasy" versus the "truth."

Another point is this: the reality of "Bree"'s fictiveness is only less of an attraction if her fans thought that her physical reality and theirs would someday collide. Given the irrationality of that fantasy (that someday some intriguing and good looking superstar will walk into my life, befriend me and adore me), isn't the more realistic play the game where we give into our imaginative capacities and create fantastic worlds where Bree and her fans can chat on-line about books like "Guns, Germs and Steel" and string-theory? Who is to say that the community of fans she gathered around her isn't real enough? Why sustain the unreasonable fantasy of someday meeting and becoming fast friends with Lonelygirl15 and accept the gift of a community of fans and stories and thoughts about the world that she has given you?

Hat-tip to my indefatiguable friend, Bill McGeveran, for this story.

Justice on Television

So there is a new television show on Fox that begins tonight called "Justice."  Looking briefly at the description of the first episode, it looks like the show will be like all the other ones -- more about the lawyers than litigation, more about celebrity than advocacy, more about truth than fair process.  Given the extent to which this blog has already discussed television legal drama already, I won't belabor the point here, but I do wonder what it is the television producers think has not yet been covered by yet another law show that perverts the perception of the practice of law?  I'll be eager to hear what people have to say about this new show.

False Confessions & the DA

Boulder County Colorado district attorney Mary T. Lacey yesterday asked that the arrest warrant against John M. Karr in the Jon Benet Ramsey case be dismissed. “No evidence has developed, other than his own repeated admissions, to place Mr. Carr at the scene of the crime,” Lacey stated. “Mr. Karr was not the source of the DNA found on the underwear of JonBenet Ramsey.”

What may be most remarkable about this latest twist in the long-festering case is the district attorney’s forthrightness and honesty in dismissing Karr’s multiple confessions to the crime. Too often, confession is considered the “queen of proofs,” evidence that closes the case. It’s impossible to estimate how many of those convicted and incarcerated on the basis of confession alone may be innocent—but surely some are, such as the Washington pig farmer Paul Ingram accused by his daughters of the most bizarre crimes—none of which was ever supported by a shred of material evidence—whose case was detailed in Lawrence Wright’s Remembering Satan. Psychologist Richard Ofshe, who has done much probative work on false confessions, quickly established that one could inculcate nearly any false memory one chose in this particularly suggestible suspect. And there are many others who bizarrely convince themselves that they were implicated in crimes they had nothing to do with.

It’s enough to give credence to Sigmund Freud’s apparently bizarre note on criminology called “Criminals From a Sense of Guilt,” where he argues that the reason people commit crimes is that they feel guilty, and want to ensure that they will be punished. This effectively turns the whole criminal justice system on its head.

The Boulder district attorney has taken much flak in this case, but I'd point out that she had the good sense to understand that confessions need some kind of confirmation (in German procedure, a court is not supposed to accept a suspect’s confession unless corroborated by other evidence). Alas, that’s not the standard operating procedure in the U.S.. In most instances, once the police interrogators have got a confession, the suspect is doomed. Not only does this lead to false convictions, it lets the truly guilty escape. Getting confessions comes to appear the easy way to do police work, and that can lead to less than probative results. Confessions should be used to open cases, not to close them.

Peter Brooks

SALT's Power

SALT's bi-annual teaching conference will be held this year at my home institution. We are looking forward to hosting the conference devoted to "Academic Freedom and Teaching Activism in the Post 9/11 World."  Although I am not doing the planning for the conference, its occasion has got me thinking about the acronym (SALT) for the organization (the Society of American Law Teachers) and about acronyms more generally. There is an article, I think, all about legal acronyms. I can't remember whether it's humorous or serious (quick -- anyone find that article?), but the more I think about SALT and the possible connotations the word raises with an activist organization of the kind SALT is, my mind wanders to others: TRIPS, NOAA, ACORDS, ORCAA, PACER, PERC, WIPO.  These days, we are likely jaded by the speed at which acronyms are adopted into our everyday lexicon. Stepping back to think about their value -- informative, humorous, efficient -- makes me think of some of their other effects and qualities -- obfuscating, braggy, hurried. These days, do the creation of acronyms drive the naming of organizations and groups? Is the value of the acronym (the mark?) that obvious to people?  I would love, for example, to learn more about the SALT acronym and its deliberate or coincidental adoption by the Society.  In any case, I hope to see people at the conference next week.

Call for Papers: Food, Law and Culture

Chris Buccafusco, a graduate student in the History of Culture program at the University of Chicago, is putting together a panel at the Annual Law, Culture and Humanities conference (to be held in March 2007 at Georgetown Law Center).  His call for papers is here on August 1, 2007 and reproduced below. I would recommend his blog for "gustatory fun" as well. (Anyone who thought writing about law and film was a way out of the legal academic doldrums, consider writing about the regulation of wine classification and recipe copyrightability).

Call for Papers: Food, Law, and Culture Panel

I am currently soliciting paper presentations for a new panel on “Food, Law, and Culture” for the annual Law, Culture, and Humanities Conference to be held at Georgetown University, March 23-24 2007.

Last year’s conference included a handful of “Law and Food” papers in different panels. They were all well-received, and the topics they addressed seem worthy of integration into a single panel. The panel’s goal will be to begin theorizing about the place(s) of food in the law by exploring both the different ways law treats food and the various cultural norms about food that lie behind this treatment. My work, for example, analyzes the copyrightability of recipes through the lenses of aesthetic philosophy and the cultural history of cooks and cooking.

Topics can include, but are not limited to:

Intellectual property rights in genetically modified foods
Hunger strikes and force-feeding prisoners
Last meals
Food torts, e.g. exploding sodas, fingers in chili, coffee in the lap
Government regulation of food and alcohol
Obesity regulation
Animal rights
Dietary laws and regulations in different cultures
Trademark rights in appellations of origin
Farm subsidies and international trade
Linguistic classification of food, e.g. kosher, 1st Growths, Organic
Sumptuary laws
Famine
Labeling, packaging, and branding
Rationing
Food stamps

The deadline for submissions to the conference is October 15, 2006, so please respond well before then if you think you might be interested in joining the panel. Also, please circulate this to any colleagues that might be interested. Feel free to contact me directly if you have any questions or comments.

BIg-Box Rules

In response to my article in the Boston Globe on the proposed Chicago ordinance requiring big-box retailers to pay employees a living wage, blogger Daniel Drezner goes the ad hominem root and suggests that, before stating an opinion on the matter, I need to live on the south side of Chicago where the store would be going.  If I did, he says, then I'd see that the proposed Chicago ordinance is reckless.  But, of course, lots of people who have spent lots of time there -- and in places a lot like it -- seem to think the ordinance is sorely needed.  They realize that big-box retailers want access to lots of neighborhoods in the city, and not just the one Drezner highlights.  In fact, big-box is already in some upscale parts of Chicago.  So we know this much: people who know the neighborhood and the city in question quite well (and that includes Drezner) actually have VERY different views on the wisdom of this policy.   Which leads precisely to the point I was making.  I was not arguing that Chicago should pass the ordinance but rather that Chicago should have the legal power to make the policy judgment for itself.  Drezner, an economist, skipped right over that distinction. (If I need a fellowship to take me to the South Side, as he suggests, then maybe he needs one to take him to law school.)  Actually,  though, Drezner is on to something interesting and important.  He emphasizes rightly that not all city neighborhoods are the same. It might be that the city would be wise to permit bix box retail in some neighborhoods within the city on more favorable terms than others.  The mayor has suggested as much, proposing that each ward be able to decide the matter for itself.   It's a complex policy question, however, whether such neighborhood-based tailoring is a good idea or a bad one, and it depends a lot on the particularities of the retail market in the Chicago area.  I am skeptical it is a good idea, but open to being persuaded otherwise.  But, for me, the key point for now is that a city could not tailor its policy in this neighborhood-focused manner even it was a good idea for it to do so unless it had the legal power to enact such living wage ordinances at all.  And that's part of the reason why I think the Chicago ordinance, if enacted,  should be upheld against the home rule, equal protection,  and ERISA-preemption challenges that are sure to follow.

Gardening and Lawyering

I'm preoccupied with the city of Boston, these days, perhaps because I have looming deadlines that I am avoiding, perhaps because classes begin in three weeks and I am looking for a distraction. In any case, as I was walking to work this morning through the Boston Public Garden, I was struck by the sight of palm trees. It seems that the glorious gardners of our public spaces made the most of our gruesome heatwave.  Newly planted among rows of other tropical plants, the miniature palm trees greet you as you walk around the equestrian statue of George Washington. Tickled at the sight of the magnificent General on his horse surrounded by the palm trees, I thought this non sequitur was both humorous and inspiring. It recasts our national hero in new clothes, reminding me that even our founders have to change with the times.  And it helped me recognize how crucial invention and creativity is in our daily lives, in gardening, in parenting, in politics, in law.  (For those of you not familiar with the Boston Public Garden, it is usually planted more traditionally and with local or native flowers, trees and shrubs, perhaps in keeping with the historic nature of the place, perhaps as a sign of the conventional dimension of Boston culture.)  The palm trees also made me laugh and, I thought, were meant to be lighthearted, both crucial demeanors these days (at least for me) in times of war. I am not suggesting that we take the current politics of our times -- our duties as citizens or advocates or teachers -- less seriously. I am suggesting that the need for change is strong; we might draw on our inventive capacities to imagine and make our communities better; good ideas might come from unexpected places (palm trees in the Common, flanking Washington); and keeping a sense of humor is critical to letting those good ideas flow.

Big Dig Turmoil

As if things around Boston aren't hot enough, state legislatures are actually considering taxing non-Bostonians who tie up traffic by causing accidents during rush hour. The Boston Globe reported today that elected officials are actually considering assessing a surcharge "of several hundred dollars" on any out-of-town automobile commuter whose at-fault accident frustrates what should be a well-oiled commute into downtown Boston. The article reports that with "Boston property taxes up 58 percent since 2002 and the city's cost of doing business rising, the proposal is finding support from people who say money should be raised from those who use city services [tow trucks, ambulances, etc.] but don't pay for them."

With our out-of-town Governor unclear on the concept of avoiding racist speech when talking about one of the costliest (and now fatal) public works projects this nation has ever seen (see coverage yesterday on Mitt Romney's use of the term "tar baby" to describe the Big Dig), Massachusetts doesn't need any more controversy to stir up and divide its citizens. How would a proposal like this work anyway? A Boston-based ambulance arrives at the scene of an accident in one of our newly-built but leaky and collapsing tunnels, and the Boston ambulance driver says to the out-of-towner with a sprained ankle and whiplash: "for the price of driving on our roads and because you have caused a traffic snarl and are not from around here, your ride will cost $300 more than a native Bostonian." How could the out-of-towner respond? "Well, I used be from around here. In fact, I lived in Boston for 12 years while you were building this mess. I suffered through the detours and closed roads and only moved away a couple of years ago, and I did that because the schools were only getting worse and my kid was about to start kindergarten."

It seems to me there are a lot of good reasons (finances aside) not to enact a law like this one. The common demoninator in our public life (and public laws) may seem like money, but it is really community. This proposal may raise money, but it will divide and alienate people. It raises the NIMBY syndrome to new levels. It is a bad idea.

Hamdan, Schamdan

In response to a letter from Senator Schumer seeking the Administration's view of the NSA domestic surveillance program in light of the Court's decision in Hamdan, the Deparment of Justice has submitted this letter, in which it contends:

-- That the AUMF overrides FISA (even though, per Hamdan, it does not override the UCMJ);

-- That, in any event, Congress has no Article I power to enact FISA, at least with respect to the President's wartime surveillance practices (even though Congress did have the power to prescribe limits on military commissions);

and,

-- That even if Congress did have an Article I power to enact FISA, the President's Article II power as Commander-in-Chief and as the "Executive" entitles him to disregard FISA in wartime (a position DOJ contends is still valid because Hamdan does not even require the Administration to comply with the UCMJ if it conflicts with his Commander-in-Chief powers or his constitutional duty to protect the nation). 

There has been a lot of talk about Hamdan being the modern-day Youngstown.  Youngstown, however,  had the advantage of a President with a modicum of modesty.

Awards for Criminal Confessions

As I continue my work on my project on filmed confessions, I have come across some of the most excruciating film footage I have ever sat through. I wonder why it is I ever stopped writing about hollywood dramas. These criminal confessions are terrifying.

I just watched for a third time the film of Deanne Laney's confession. She is the Texas mother of three boys, two of whom she stoned to death in 2003.  The part that most moves her to tears is not when she describes how she killed her two boys, but when she tells the story of little birds learning to fly just outside her kitchen window. "Where's their mother?" She wonder aloud. "Just then, the mother's head pops up. She was there all the time." Laney starts crying at that point. Why? Because she's like that little bird, learning to fly. Just when you think God has abandoned you, he is right there. "I'm teaching you now how to fly," God ostensibly tells Laney. And she then decides she must kill her sons.

Just this last week, the L.A. Film Festival honored a documentary by Amy Berg called "Deliver Us From Evil" about one priest, Oliver O'Grady, and his past crimes of child rape and molestation. He now lives in Ireland, having been deported after serving seven years of a criminal sentence in the US.  The documentary is in large part interviews with O'Grady about his past criminal acts as the camera follows him around the streets and parks of Dublin. By all accounts (I have only seen several long clips of the film), O'Grady is truly happy to be telling his story and searching for some peace and understanding through the filmmaking process. He admits what he did was wrong. Like Deanne Laney, there is a sense of freedom in the telling.

What am I learning from these films? When I am entirely engrossed in them, thinking "only this kind of delusional person could commit such crimes" I realize how powerful film is, how enveloping a medium it can be. The film has fooled me into conflating the image of the person -- the film's portrayal of the person -- with person who committed the crimes. I think I truly know the person confessing and his or her reasons for doing so. But all I know is the manner in which he or she performs for the camera. What I am really seeing (I think) is that Laney and O'Grady want to tell their story, they seek liberation (achieve some statis or understanding) in the act of telling.  When I look at the film itself (its form, the mediation of the camera) and not that which the film purports to represent (some revelation of a person's innerbeing), I become aware not only of how we make ourselves anew with each telling of our past, but how only this new telling can be the basis of judgment. Maybe this is (or should be) enough. Because in as much as law tries to conjure the past to adjudicate its criminality, it will inevitably fail.

LawFashion

I will be traveling to Baltimore for the Annual Law and Society conference in a couple of hours. Tomorrow, I'll be participating in an Author-Meets-Reader panel to discuss Susan Scafidi's book Who Own's Culture. It's an insightful and fun book to read about the underprotection of certain forms of cultural products (fashion) and the overprotection of others (chemical compounds).

There is so much to admire about Susan Scafidi, especially from where I sit: which is as a newish female legal academic from an interdisciplinary background, who writes about “low brow” things – I write about film, she writes about fashion.  Successfully deconstructing the nomenclature of “low brow” and “high brow” is part of Susan’s successful project.  She points to why cultural products, like fashion, cuisine, quilting are typically not protected in traditional intellectual property regimes, and how – no surprise here for the feminists in the room – these are also typically female-oriented endeavors.  The implication here is that there is a real, material connection between what U.S. law protects and the ideology of gender.

Another thing I like about Scafidi’s book (and Scafidi’s blog, and her scholarship generally) is how unapologetic she is when it comes to discussing things like fashion and food in the context of law and society. Not that I think one should be apologetic – especially in a forum like the Law and Society association. But don’t be fooled – there are plenty of law faculties around the country that would and do turn up their noses at articles written about Louis Vuitton luggage or Lily Pulitzer clothing even if the subject is intellectual property law.  Scafidi has – ironically enough – taken “low brow” issues in a legal academic setting and legitimated them with her fine scholarship and depth of knowledge about intellectual property regimes – much as she says the legal system should do with certain cultural products presently undervalued or unprotected by intellectual property law.

In these ways, Susan Scafidi is admirably bold.  She is also bold in that she is advocating more IP protection in a legal academic world populated by (or at least where some of the loudest talkers are) those who think there is too much IP protection – that the trend in legislative initiatives over the past 25 years to extend and enlarge certain IP protection is deeply troubling from the point of view of protecting the commons. Some will criticize Scafidi for her association of value and legal right: she suggests that if we value certain cultural products, we should protect them through the law. Her critics will say “don’t create more IP rights but decrease the rights available to others.” This avenue, they think, will free up more creative expression, encourage more inventions for everyone’s benefit. They’ll point out that people don’t necessarily need the incentive of IP protection to create, invent or market goods. Society benefits all the time from unprotected acts of creativity and genius.

There are lots of good arguments against this predominantly economic model of intellectual property (some of which Scafidi mentions, some of which she doesn’t). One of which is that whether or not a source community stops engaging in its valuable creative activity in the absence of the extension of intellectual property rights, whether the law grants it legal protection says something about our culture’s valuation of and respect for that creative activity and that source community.  This is an argument about the symbolic function of law, one which Scafidi makes, especially in her concluding pages, but which I think could be made stronger. Insofar as the law serves a modeling function (it being constitutive of social norms as well as reflective of them), protecting the cultural products of source communities can help foster tolerance for and disseminate honest information about those communities and their contributions to society.        

The headlines of op-ed columns

One very strange-- and occasionally distressing-- tradition at newspapers is that editors write the headlines even for opinion pieces written by other people. In other words, and those who have  written op-eds know, you submit your op-ed, and the editors give it some weird headline of their own choosing, instead of the one you thought would be good. Sometimes this works out very well -- the editors think of something pithy and clever you'd never have thought of-- but other times they come up with something that's completely off base, or even actively misleading in terms of its (non)relation to what you wrote. (

I felt that way about my most recent LAT column, which was about the implications of the Hamdan decision for potential liability under the War Crimes Act. This time, the headline ended up being Did Bush Commit War Crimes?, which was frustrating, since the piece was intended as sober analysis, and never suggested that Bush himself commited war crimes or could be prosecuted for the same-- but the headline was, well, rather provocative, and so far about fifty people have sent me enraged emails.)

I wonder about the origin of separating the writing of headlines from the writing of articles-- especially opinion pieces. Is it just an odd tradition? Or is there some logic behind it?

Hamdan and the War Crimes Act

I posted on this issue at the new Georgetown Law Faculty Blog, which is here.