The Faculty Lounge

Like a Rolling Stone

"Like a Rolling Stone" is literally a song that needs no introduction, but here is a short one nonetheless. It is beyond question one of the greatest rock songs ever recorded. Rolling Stone (the magazine) ranked it number one in both 2004 and 2010, although it fell to number four in 2021. Other rankings -- by the Guardian, Pitchfork, Uncut, and others -- have had it between first and fourth. I doubt that any serious Rock music critic would list it out of the top five of all time. Of course, these rankings are all kind of silly, given the breadth of the music and varying tastes, so please just enjoy the music.

Mama Tried to Keep Me out of Folsom Prison

Songs of wrongful convictions are as old as country music, including Vernon Dalhart's The Prisoner's Song (1925) and Jimmie Rodgers's  I'm Free from the Chain Gang Now (1933). The most famous early prison song is no doubt The Midnight Special, first recorded in 1934 by Huddie Ledbetter. Contrary to Alan Lomax, Lead Belly did not write the song; there are other versions in recordings dating back to the 1920s. The prisoner in The Midnight Special may not technically have been wrongly convicted, but a prison sentence ("Sugarland bound") for a "squabble" was certainly a miscarriage of justice for a Black man in Texas or Louisiana (Lead Belly did time in each state).

It seems that (somewhat) remorseful songs of deserved imprisonment are more recent, probably spurred by the outlaw image occasionally embraced by stars such as Merle Haggard and Johnny Cash. (Don't miss some Byrds in the 8th clip, and a special guest appearance at the bottom of the post.)

Heat vs. Light IV: On Conditional Law-School Scholarships and Judging Conduct “Good” or “Bad,” Broadway and Hollywood Edition

The texts for today’s homily are from Guys and Dolls and The Little Mermaid.  Our first subject is Big Jule (alternatively pronounced, depending on the production, "jool" or "julie"), the enormous and imposing gangster from Chicago.  Big Jule has come to town, flush, looking for a high-stakes crap game.  Near the end of the musical, that game comes to a climax in the local sewer.  After some unfortunate early losses, Big Jule has removed his coat and, with his revolver gleaming in plain view in his shoulder holster, pulls from his pocket his special “lucky dice.”  These dice appear to everyone else to have blank faces because, Big Jule reveals, they have spots that only he can see.  Miraculously, Big Jule’s luck turns, and he wins several big bets. When some of the other gamblers complain, Harry the Horse helpfully explains that “Big Jule cannot win if he plays with honest dice.”

Later that evening, disarmed and on the losing end of an unconventional bet with Sky Masterson, Big Jule finds himself obligated to attend a revival meeting at the Save A Soul Mission.  Compelled by his bet to participate in the meeting and confess his sins, Big Jule makes a clean breast of it:  “I used to be bad when I was a kid.  But ever since then I gone straight, as I can prove by my record — 33 arrests and no convictions.”  The prayer meeting is, improbably, a success; lovers are united; and everyone lives happily ever after.  Big Jule presumably returns to Chicago to resume his blameless life.   

I hope you’re smiling.  Now I’m going to ruin everything by explaining why this wonderful story is funny.  (A quick editorial aside before we begin:  Guys and Dolls is not timeless in every respect, of course.  It includes gender stereotyping and other cultural assumptions that, from our 21^st-Century vantage, seem not-all-that-quaintly anachronistic.  But the features of the story that I have excerpted above seem sufficiently salient to the matter at hand that I think we can make good use of them here.)  Once again, the heavy lifting begins after the jump.

Heat vs. Light III: A Call for Some Clear Thinking and Clear Talk About Law-Graduate Employment Reporting

When I wrote my most recent post in this series, I thought its subjects—“what [law-graduate] employment and earnings data ought generally to be presented, and whether the way such data are generally understood makes their presentation subject to misinterpretation”—were settled, and peripheral to the broader topic of the series.  (Those keeping score at home will recall that the broader topic of the series is the importance and limitations of Mike Simkovic’s and Frank McIntyre’s recent scholarship on the value and purpose of legal education.  The first post is here; the second and more recent one is here.)  Unfortunately and surprisingly, my previous post has proved much more contentious than I anticipated, spawning dozens of Comments here and at least two posts on other blogs (Mike Simkovic on the Leiter blog here, and Brian Galle on Prawfsblawg here). 

As is so often the case, the contention seems to spring from a few basic but important confusions.   Actual common ground having proved too scarce to hope for, in the interest of mutual comprehension I attempt here to untangle the skeins that the combatants seem to be throwing past one another.  I hope to clarify where and how we disagree, and why I hold the views I do.  If you agree with me, that’s nice too.  If you disagree, I invite you to explain clearly how and why.

Advance warning:  This post is a bit longer than usual (around 2,800 words).  The public discourse on these issues is so mixed up that it takes some doing to untangle it.  I beg your indulgence, and thank those who make it to the end for their dedication and patience.   The heavy lifting begins after the jump.

The Antebellum Cemetery Corporation and the Promotion of Religion

While  Naomi Lamoreaux and Bill Novak are giving an important and extended lesson the history of the corporations and the Constitution over at Slate I want to focus on the role of cemetery corporations in promoting religious and other civic values in the Pre-Civil War era.  Bill and Naomi point out that in our history corporations have largely been treated as artificial beings with public obligations.  This made me think of the corporations founded largely from the 1830s to the 1860s to promote rural cemeteries.  Those corporations -- chartered individually by legislatures until some states like New York passed general cemetery incoproration statutes (around the same time as they passed general incorporation statutes) -- were promoted because they were going to support a series of values, from the propagtion of Protesent religious ideas to amporhous ideas of economic progress and Union.  That is, as a bunch of scholars from Johann Neem to Jason Mazone have written, civic organizations and corporations were seen as supporters of public, constitutional values.  Civil organizations and cemetery corporations (and other corporations, too) were part of assisting the state.  And orators who spoke at the dedication of cemeteries often commented on the role that the cemetery corporations (often but not always charitable corporations) played in the propagation of constitutional and religious values.

Cribbing now a little from my paper on the constitutional significance of antebellum cemeteries....

Of Twerkers and Twerkees: An Open Letter to Robin Thicke’s Mother

[This post falls squarely in the “[pop] culture” portion of TFL’s “law, culture, and academia” mandate. Regular programming will resume in due course.]

Hi Gloria. Can I call you Gloria? I understand that you were displeased by the duet performed by your son and Miley Cyrus (as you know, your boy shows up at the 3:00 mark) at the MTV VMA awards Sunday evening.

Specifically, you said:

I was not expecting her to be putting her butt that close to my son. The problem is now I can never unsee it. . . . Him? Loved it! I love that suit, the black and white suit. I don’t understand what Miley Cyrus is trying to do. I just don’t understand. I think she’s misbegotten in this attempt of hers. And I think it was not beneficial.

Gloria, I’m confused about your confusion. I mean, look, the whole obscenity concern trolling thing isn’t my bag. VMA has been doing this for years, and if you wanted to see something else, well, that’s what they have C-SPAN for. But hey, you’re certainly free to know it when you see it. Obscenity, that is.

What I don’t get is why you see it in Cyrus but not in your own son.

To be fair, it’s not just you. All the commenters I’ve seen, from Sean Hannity (“outrageous,” “downright raunchy,” and “inappropriate” for a role model) and Bill O’Reilly (“she’s a troubled young lady” and “out of control”) to Camille Paglia (whose focus is on the philistine rather than the obscene nature of the routine) have reserved their criticism for Cyrus.

A mommy blogger’s open letter to her daughter, warning her not to follow in Cyrus’s footsteps, has gone semi-viral. But not a single Mommy blogger has warned her son against following in your son’s footsteps.

To no one's surprise, Bill O’Reilly blames Cyrus’s twerking on “bad parenting,” and after Miley’s father, country singer Billy Ray Cyrus, defended his daughter, O’Reilly asked whether he should be “shunned.” Even Brooke Shields, who played mom to Cyrus’s Hannah Montana, felt the need to weigh in and demand answers: “I was Hannah Montana’s mother. I do not approve. Where did I go wrong? I just want to know who’s advising her, and why it’s necessary?” (By contrast, Shields remains “shocked” by the controversy over her own performance in the infamous “You wanna know what comes between me and my Calvins? Nothing.” ad campaign, which she shot when she was just fifteen years old (Cyrus is twenty), and which was banned by CBS.)

And yet no one blames you, Gloria, for raising a son whose music and videos are—in addition to being just as "obscene" as Cyrus’s (and just as arguably misappropriating of black culture and glorifying of drugs)—kinda rapey. Following the VMA hoopla, Cyrus's father canceled a scheduled interview with Piers Morgan at the last minute. But free from the burden of having to defend your parenting and your child, you can grant media interviews in which you accept the condolences of a shamed nation and join the #MileyGate pile on. It’s all a little reminiscent of Justin Timberlake, whose image was only barely and very temporarily tarnished by the “wardrobe malfunction” of Janet Jackson (remember her?), which he, too, apparently helped orchestrate. I don’t personally care about either Cyrus’s butt or Janet’s nipple, Gloria. But I am annoyed by the double standard involved in criticizing the female but not the male co-venturers in these manufactured controversies—the twerkers but not the twerkees, if you will—which is why I'm writing. (More after the jump.)

Forthcoming Issue Law & Literature of University of Toronto Quarterly

An exciting special issue on law and literature is forthcoming from University of Toronto Quarterly.  The issue, due out in August, is being edited by Greig Henderson (Dept. of English, University of Toronto), Cheryl Suzack (Departments of English and Aboriginal Studies, University of Toronto), and Simon Stern (Dept. of English and Faculty of Law, University of Toronto).  As far as I know, all of the pieces were invited submissions. A fuller description of the issue is available here.

The articles are as follows:

Elizabeth S. Anker (English Dept. at Cornell):  “In the Shadowlands of Sovereignty: The Politics of Enclosure in Alejandro González Iñárritu’s Babel”

Mark Antaki (Faculty of Law at McGill):  “Genre, Critique and Human Rights”

Dale Barleben (Dept. of English at John Jay College, CUNY):  “Law’s Empire Writes Back: Legal Positivism and Literary Rejoinder in Wilde’s De Profundis”

Todd Butler (Dept. of English at Washington State University):  "Victim Impact Statements, New Media Technologies, and the Classical Rhetoric of Sincerity”

Gregg Crane (English Dept. at Michigan):  “The Hard Case: Billy Budd and the Judgment Intuitive”

Ann E. Tweedy (Hamline Law):  “How Allotment-Era Literature Can Inform Current Controversies About Tribal Jurisdiction and Reservation Diminishment” 

Nicole M. Wright (Postdoctoral Scholar at Chicago):  “‘A More Exact Purity’: Legal Authority and Conspicuous Amalgamation in Eighteenth-Century English Law Guides and the Oxford Law Lectures of Sir Robert Chambers and Samuel Johnson.”

My piece responds to the Supreme Court's practice of justifying denials of tribal jurisdiction over non-members in current cases based on the presumed expectations of non-Indian settlers during the allotment-era that reservations would disappear (thus eliminating any possibility of tribal jurisdiction).  In a recent piece in the Seattle University Law Review, I examined historical newspaper articles from the allotment era that addressed the opening of Sioux reservations in South Dakota.  I argued that, because many of these articles revealed injustices to tribes in the takings of their lands, settlers who read the articles--or who were privy to the information in them-- could not have formed justifiable expectations that the reservations would disappear.  In this new piece, I examine some works of allotment-era literature set in South Dakota and nearby areas to see if these works similarly provide notice of such injustices.  The results in the case of the literature are more mixed, but some works--particularly those of Zitkala-Sa and Doane Robinson--provide notice of the injustices inherent in land takings.

Andrew Klein Named Dean At Indiana-Indianapolis Law

Professor Andy Klein of Indiana University-Indianapolis School of Law has been named the school's dean effective July 1.  Klein, who holds a JD from Emory, has has served in the IUPUI Chancellor’s Cabinet as chief of staff since 2010.  In 2012, he also became the university's associate vice chancellor for academic affairs.  He joined the IU-I faculty in 2000, after teaching at Samford University's Cumberland School of Law.

Race and Infertility Care

Several research assistants and I spent last summer looking at websites from virtually every US fertility clinic.  One of the things we recorded was the race of any babies pictured on the first page of the clinics’ websites.  I have no background in critical legal studies or critical race theory, so I am probably not the best person to do this study, but I was looking at other advertising issues on the website, and I had read that minorities use assisted reproductive technologies at a much lower level than Whites, despite experiencing higher rates of infertility and even when states mandate fertility insurance (which should control for wealth effects).

 I was surprised by the results, which are included here.  It turns out that the picture of fertility care in America on websites is quite literally a picture of White doctors helping patients have White babies. 

Addictive Junk Foods

The New York Times has a very provocative article coming out in tomorrow's magazine about the junk food industry.  It is definitely worth a read.  The author draws parallels between the big food industry tactics and big tobacco.  This is an analogy made earlier by Kelly Brownell  Rudd Center for Food Policy and Obesityand his co-author Kenneth Warner in this article "The Perils of Ignoring History: Big Tobacco Played Dirty and Millions Died. How Similar is Big Food"? The Perils of Ignoring History.  One aspect of this story that may be a revelation to many people is the degree to which food has been deliberately engineered to engender what the article calls "the bliss" point.  What should be apparent is that the industry has spent, and continues to spend, billions of dollars on engineering these foods and fine-tuning their marketing pitches. And data mining allows them to be more fine-tuned than ever, as this article from Advertising Age suggests. Facebook to Partner with Acxiom.

A good deal of the advertising dollars spent by advertisers or these products are spent directing ads at children and teens, which, when one considers what is being pitched, doesn't make the analogy between tobacco and junk food seem that far fetched. See for example this quote from the AdAge article: "The targeting would hypothetically enable Coca-Cola to target to teenagers who've bought soda in the last month..."

I have long wondered why it doesn't bother people more than it seems to that so much money is spent pitching directly to kids,  since no one thinks children or teenagers are fully rational choosers (even if we pretend for sake of argument that adults are). So why is it okay to train this battery of persuasive efforts at them? And in many cases marketing efforts are clearly aimed at very young children. The figure of Ronald McDonald is an example.  Is Ronald McDonald the New Joe Camel?

However, just as this issue is getting more attention (again - it saw a good run in the 1970s in the FTC's ill-fated  "Kid-Vid" investigation),  the commercial speech doctrine has become so much more protective of advertising that any proposed restriction on advertising, even if it is to apply only to the most vulnerable group, children, is likely to fail First Amendment scrutiny. Indeed, some academics argued that even the mere proposal by an Interagency Working Group see here formed to try to propose industry self-regulatory guidelines on marketing of junk food to children, would fail the First Amendment because mere publication of such suggestions which did not have the force of law, might have a "chilling effect."  See here and here . It appears it was the government not the marketers, which was "chilled." FTC weakens proposals.  The irony is that given the state of the law, it might be easier to ban certain products, as mayor Bloomberg did, than it is to regulate the marketing of those same products. Yet, for those worried about the "Nanny state" a ban is arguably far more intrusive on liberty than a ban on marketing -- except the marketers' liberty. But the whole idea in protecting commercial speech was that it was supposed to further consumers' liberty, not advertisers. So this is a bit of a puzzle. 

The Ex Ante/Ex Post distinction

Lawrence Solum over at the Legal Theory Blog has this excellent discussion of the ex ante and ex post question as it comes up in analyzing best legal rules and depending on the orientation of the analyst as to whether we care most about outcomes (regardless of fault) or fault (regardless of outcomes). Ex Ante and Ex Post.  (These would be extreme ends of the spectrum).

But the ex ante/ex post problem also extend to the analysis of any issue where you are not sure what the right distribution of resources and investments are.  Ex post, when you know how a particular decision has come out, that decision tends to look inevitable and thus it is easy to criticize the choices made or not made as ones which ignore the "obvious" likely outcome. This is often termed hindsight bias (or Monday morning quarterbacking) and can make decisions seem easier than they were at the time they were made.

In contrast,  a lot of decisions require us to make assessments ex ante - before we know how it is going to "turn out."  And that is one of the problems raised in an earlier post on the value of  scholarship.  How can you calibrate the right amount to invest (even assuming you could come up with an accurate assessment of its cost, a proposition I am skeptical about), if you don't know how much of the "bad" stuff you have to support in order to get the "good" stuff.  And that also omits the even more problematic question about assigning labels like "good" and "bad" to something which  may defy easy calculation in market terms. 

There is an analog to this problem in advertising circles. The old joke goes:  "I know that 50 % of my advertising budget is wasted. I just don't know which half!"  For advertisers the ROI problem (return on investment) is both ex ante and ex post since, although they can track dollar returns from investments in certain advertising campaigns, they can never be sure that they know why a given campaign seemed to drive sales so successfully.  The annals of advertising lore are littered with examples of an advertiser trying to take a proven formula only to have it bomb. Hence the joke. But advertisers have one advantage over academics in any field - they are marketing a product which is sold in the market, not in the so-called "marketplace of ideas," one with a price in dollars (which of course may have little or not connection to its intrinsic worth in some other system of valuation) and advertisers can measure the sales number before and after a campaign. They may not be able to say for sure that it was the campaign that made the difference, but it is often a reasonable inference.

For the hapless evaluator of legal scholarship there are no such clear metrics for tracking the dollar value of scholarship and such metrics as exist (citation counts, downloads, US News peer reputation scores) are, as I observed previously, incomplete at best and woefully inadequate at worst. It may be that investments in scholarship are maldistributed, although I have yet to see an argument for this proposition that doesn't rely on generalizations about legal academics and law schools that I don't think apply as widely as some argue.  Maybe the expenditures on scholarship should be reduced. But deciding on the "which half" part of that question is surely part of the problem presented by any such proposal. 

 

Free speech and off-label use marketing

Makers of pharmaceutical drugs got a fairly significant victory in their quest to have the FDA's regulation of off-label use marketing ruled unconstitutional.  In United State v. Caronia the 2nd circuit overturned the conviction of drug re Alfred Caronia for conspiring to "introduce a misbranded drug into interstate commerce," finding that he was convicted in violation of his First Amendment rights on the basis of his speech promoting the drug Xyrem, a drug to treat narcolepsy, for other uses.

As this article in Forbes notes, the decision is potentially a game-changer since the industry has been paying billions of dollars in fines for violation of the off-label use marketing rules. Does Misdemeanor Misbranding Survive Caronia? 

There is reason to think that a blanket invalidation of FDA rules relating to off-label use marketing is still aways off since this is still just one circuit and the conviction in Caronia relied so heavily on the speech in question. It is still possible to argue that the misbranding question (which is the actual legal authority under which the off-label use regulation is predicted) is generally unaffected and that, in any case, this decision by no means signals that speech cannot be evidence of misbranding conduct. For more on the case see Free Speech and Off-Label Use Conviction  And there is evidence that settlements related to marketing practices continue. Shire Takes $57.5 Charge to Settle Marketing Probe .Yet, it hardly seems like the FDA would want the same Supreme Court that decided Sorrell to review Caronia. And indeed, word is that the FDA is not seeking review. FDA Won't Appeal Free-Speech Marketing. I wouldn't either.That doesn't mean that this decision represents a good development. To the contrary, as I have warned elsewhere, it may well make a good deal of law that we have generally thought of as well-settled, suddenly unstable. 

As the dissent noted: "The majority has chosen to apply heightened scrutiny to this case, though we have not done so in other cases involving the use of speech as evidence of intent—for example, in antidiscrimination actions or prosecutions for criminalinducement, attempt, and conspiracy—cases I cannot meaningfully distinguishfrom this one. The majority’s decision today extends heightened scrutiny further than the Supreme Court ever has, and calls into question a fundamental regime of federal regulation that has existed for more than a century. I respectfully dissent." (dissenting opinion at 30)

The Scylla and Charybdis of Central Hudson

I have said elsewhere ("A Necessary Cost of Freedom"?) that the Supreme Court's decision in Sorrell v. IMS Health may have, for all intents and purposes, done away with the Central Hudson test which any regulation relating to commercial speech must pass.  That test, for those unfamiliar with the doctrine (and really who is familiar with it outside of those litigating around it?), has 4 parts. The first two elements are almost never controversial. Prong 1 is whether the product or service is legal and whether the speech in question about that legal product or service is truthful and not misleading. (There is a wealth of complication here is this deceptively simple requirement but that is a post for another day. Suffice it to say that this is not usually where the fights are).  Prong 2 asks whether a substantial government interest is involved. Again, this is not usually the question around which a fight arises.

The fights usually arise around prongs 3 and 4. Prong 3 requires that the government show that its regulation "directly advance" the goal in prong 2 and Prong 4 requires that it does so without being "more extensive than necessary" to advance that goal in prong 2.

As we look at the many public health issues - off label use marketing, junk food marketing and others - you might notice a problem.  Regulatory efforts which are effective are likely to be fairly broad - say banning certain types of advertising altogether or banning in particular venues and thus will very often run afoul of prong 4.  In contrast, when agencies or legislators try to very narrowly tailor a particular rule, chances seem very good that it will be harder and harder to measure effectiveness or to attribute any change to a particular measure so narrowly tailored provisions may fail prong 3.  This last observation may be exacerbated by courts willingness to interpret the standards for the admissibility of expert evidence under Daubert to require unrealistic standards for causation or, at the very least, to give an advantage to those entities able to marshal a great deal of evidence to cast doubt on a particular claim. The Most Influential Supreme Court Decision You've Never Heard Of.

This may be only one of many reasons not to mourn the potential irrelevance of Central Hudson, although I caution that nominally it is still good law and the Court took pains not to overrule it.  But many an effective intervention could easily get crushed between the jaws of prongs 3 and 4, particualrly in the current environment where courts seem inclined to treat claims for freedom for commercial speech so generously. That is probably bad news for the public health community and perhaps for the regulation of the marketing practices of the financial industry. 

The Smithsonian and Slavery

Mark Auslander's recent article in Southern Spaces, "Enslaved Labor and Building the Smithsonian: Reading the Stones," shows that the stones used to build the original Smithsonian (now known as "The Castle") were quarried by slaves.  The Washington Post has a story about this here.  I guess at this point none of this should surprise me; slavery was so ubiquitous.  When I have some more time I want to talk about Mark's work and about his reliance on probate records to trace the lineage of the slaves who worked at the quarry in Maryland.  And maybe I'll join that with a little talk about the controversy over Jefferson as a slave owner.

Update: Check out the comments to the Post article; there are over 700 as of 5 pm and a bunch are raising the issue of reparations.

The image is of the Smithsonian Building from the Library of Congress' Making of American website.

ACA Oral Argument

While initial media reports suggest the individual mandate is in big trouble, Justice Kennedy asked questions indicative of someone receptive to the arguments in favor of the individual mandate. So did Justice Roberts. While both of them also challenged the Solicitor General, there still is good reason to think that the mandate could be upheld by a 6-3 vote.

The justices want some limiting principles, but there are more than enough distinguishing features of the health care insurance market to assure them that upholding the mandate will not result in a broad, federal power to force people to buy things they don't want to buy.

For my commentary on yesterday's hearings and further discussion about the mandate, see this post on CNN. For the oral argument transcript, see here

[cross-posted at Health Law Profs]

 

What To Drink During Final Exams

"Brain Toniq is no marketing gimmick." 

Additional info here.

And here's a link for those who think a single can won't suffice.

AT&T Advertising for Merger Clearance

Is anyone else bothered by all the advertising AT&T is doing about how much better AT&T service will be after anti-trust clearance of its acquisition of T-Mobile?  AT&T has a "Focus: Houston" web-page that advertises all the upgrades AT&T has made to cell-service in the Houston area. On the right-had side is a link to an interactive map of 4G/LTE service in Texas with, and without T-Mobile.

All that advertising makes two things clear:

• the relative quality of AT&T's existing service; and
• anti-trust law & policy is less about law & policy, and more about politics and lobbying!

It's not your father's anti-trust--or even the anti-trust I studied in law school. As The Byrds, interpreting Bob Dylan's My Back Pages sang:

Ah, but I was so much older then
I'm younger than that now

I suppose it was always about putting your own spin on it.  The Road Not Taken (Frost), and all that.

Travel Deals For The Flexible Traveler

Chris Lund, over at Prawfs, points out this sale at Spirit Airlines: you get $50 off on a round-trip ticket.  But this is some fine print!

* * Coupon usage/booking must be made on spirit.com by 11:59 PM ET on April 25, 2011. This offer is valid only on new, non-refundable roundtrip bookings made for travel from July 3, 2011 - July 4, 2011.

All this from the airline that charges for soft drinks, exit rows, seat assignments, carry-ons and surf boards.

When Is Your Facebook Post A 'Client Solicitation'?

 

According to the Kentucky Bar, when it's of a "legal nature," and includes your name. 

 

 

Why Are Law Firms Spamming Our Comments? Is It Ethical?

Bloggers always see lots of spam in the comments - particularly in the older posts.  These days, we see a ton of comments signed by (presumably faux) Air Jordan, Uggs, and Viagra sellers.  The signature is attached to a link to a commercial site apparently seeking to drive up traffic via the Google algorithm.  When I feel the energy, I clean a ton of them out....but too often they live forever in our archives.  

Recently I noticed some  spam-like comments originating from law firms.    Perhaps too quickly, I erased some of them.   But here are two recent comments  attached to Laura's February 8, 2008 post "Lawyers as Presidential Candidates".  New York Divorce Lawyer - aka The Rosenblum Law Firm - writes:

Most politicians write books, and it makes sense because narcissists tend to like to write books about themselves, but they usually pay someone to do it and then send it as theirs. So they use the proceeds to go into status and money to win elections, a large war chest is important to win.

On the other hand, Tobler Law - aka Tobler & Associates (your accident and injury team) - adds:

Thanks for the post! I had no idea there were so many lawyers as past presidents - I knew about Lincoln and Taft, but the rest I was clueless on.

Now, I recognize that this might not be spam.  Perhaps someone from Tobler was researching this question about lawyer presidents, came upon a two and half year old post,  was stunned to realize that Richard Nixon (to say nothing of Bill Clinton) was a lawyer, and felt compelled to comment.  Maybe Mr. Rosenblum thought this was the perfect setting to pontificate about the use of books as a campaign fund-raising tool.  But call me a skeptic.  I think that these folks are spamming to drive up their Google profile.

Is it ethical for lawyers to do this?  Is the strategic production of spam comments a form of advertising?  If so, is it in compliance with advertising regulations?  Are there other restrictions that might make such spurious comments improper?  Does it make the profession look bad?

I've pondered questions about Lawyers in the Yellow Pages, but I don't have an answer about this.   I'd love to hear others' thoughts.