The Faculty Lounge

Introducing Naming Gotham

Thank you Dan and Bridget for inviting me to step into the Faculty Lounge.  I am going to be blogging about my new book Naming Gotham: The Villains, Rogues, and Heroes Behind New York Place Names. One writing truth that I learned (relearned?) writing is that book publishers are serious about word limits. Unlike a law review article where the word limit is more of a suggestion, my publisher gave me a hard upper limit for words in the book. I ran out of space long before I ran out of words. So, I have taken to blogging because there are more stories I want to tell.

First let me introduce the project.  Then in subsequent blog posts, I will share some of the stories and details that I had to cut from the book because of space constraints.

About Naming Gotham

Each day, millions of people “take” the Major Deegan, the Hutchinson Expressway, the Outerbridge Crossing, and the Holland Tunnel. Few travelers remember that, before these names became an urban shorthand for congestion, they were actual people. This quirky New York City history uses the naming of New York City’s roads, bridges, and civic institutions as a unique window into urban social structure and the City’s ever-changing inhabitants. The lives of Revolutionary War heroes, robber barons and Tammany Hall politicos introduce readers to the outsized roles that power politics, corruption, and the slave economy played and continue to play in New York City.

The names in this book tell only a small sliver of the City’s story. To date, New York City has chosen to commemorate mostly white men. In a city as diverse as New York, that fact is telling. It reflects the historical balance of power in the City—both in terms of who had the power to name things and who got to define what counts as history. As I was researching and writing this book, that began to change. Most significantly, the Shirley Chisholm State Park, named after the first Black woman elected to Congress, opened in 2019. This shift in who the City memorializes reflects the changing narrative that New Yorkers tell themselves about their city. It remains to be seen how this changing story will translate into the policies the City adopts for its schools, its roads, and its neighborhoods.

Here is the short (very funny) book trailer that artist and writer Jeff LaGreca made for Naming Gotham. 

 

Jefferson's Fragments

    It is a virtual commonplace of legal theory and the history of legal and political thought today that Jefferson is not to be counted among its great subjects. With the notable exception of Sanford Levinson, constitutional theorists and historians of legal thought today generally pass by Jefferson’s comment to Madison that “the earth belongs in usufruct to the living” as at best an overly idealistic road wisely not taken. David Strauss and Jed Rubenfeld treat Jefferson as a fundamentally unrealistic and anti-historical thinker (by Rubenfeld’s lights, akin to Nietzsche, which is telling), while Stephen Holmes dismisses Jefferson as simply an “anti-constitutionalist.” David Konig, the leading historian of Jefferson’s legal career and the editor (along with Michael Zuckert) of his legal commonplace book, argues that Jefferson’s stance is that of a speculative philosopher which had to be subsequently reigned in by his more judicious friend and collaborator. Hannah Arendt noted Jefferson’s ward republic idea as a precious gem forgotten by both American politics and the revolutionary tradition, and Jennifer Nedelsky and Richard Matthews (among others) have noted Jefferson’s radical theory of property rights in his extended dialogue with Madison, but those are the apparent limits of Jefferson’s identity as a legal thinker. Paul Finkelman writes about he impact of Jefferson on American constitutional law, but that impact is felt through his subsequent political career.

    What many of Jefferson’s critics on this front have in common is a feeling that Jefferson’s idea was simply ahistorical- an example of what Michael Oakeshott calls political rationalism at its worst. Robert Tsai has an appraisal of Jefferson’s idea and the project of legal revolution, but he suggests Jefferson is ultimately inadequate here because it requires us to imagine ourselves stepping out of our context and the assemblage of law and history that brought us to it. Similarly, Kunal Parker views Jefferson and Paine as exhibiting a revolutionary theory of the timelessness of consent. I just don’t see it that way at all. What is Jefferson doing hunting down manuscript copies of the colonial laws of Virginia and the records of the Virginia Company if he thinks he is conveniently stepping out of the thickness (or the need for) historical representation? What about his concern for the writing and rewriting of legal text so apparent in his plans for councils to go over proposed amendments to the state constitution, or his wish, again, expressed to Madison, for a plebiscite to make suggestions before approving the US Constitution? And what flippant anti-historical idealist composes the Manual for Parliamentary Practice?

     I see Jefferson as first and foremost a practically engaged theorist of the politics of historical representation, and he distilled that theorizing into an understanding of the ideal citizen as essentially a user of inherited materials- land, yes, property, yes, but also of law and of language. In that sense, Jeb Rubenfeld’s linking of Jefferson and Nietzsche is apt, but precisely because Jefferson, at his best, thought basically historically, or genealogically and counter-genealogically, or even archaeologically, about law and politics.

     Somewhat (and I emphasize the somewhat) in the spirit of Corey Robin’s recent separate posts on Jefferson as a racial thinker and Nietzsche as the closeted inspiration for neoliberal economic theory, we could, anachronistically, say that Jefferson’s thinking about the use and disadvantages of history for life and his vision of a transformative human subject was capable of both radically democratic and reactionary, violent implications. Unlike Nietzsche the philologist and philosopher, Jefferson the man of action, slaveowner, and proponent of continental empire had a direct hand in realizing some of those implications himself. In the final analysis (if there is such a thing), Jefferson’s career is incomprehensible without understanding it as a project of constituting and protecting the racial, gendered, and geographic boundaries of a potent ideological vision of the true and ideal citizen.

    But problematizing and forgetting are two very different things. In our current moment, it might just be that the memory of Jefferson’s conjoined concepts of law as use and of the citizen as a particular kind of reader can appear in a new light. The historical practice appropriate here is one not just of recovery but of active recollection. If Jefferson if of any use, it is to teach us that that is where our political thinking can begin again. 

    I want to thank Al Brophy and Dan Filler for letting me chime in here at the Lounge for the past month or so- I have been and always shall be a regular reader of this great blog. 

Science, Art, Policy, and the Importance of Good Science Communication

Recently, several media outlets, including NPR, the New York Times, and Big Think, have covered the story of Ph.D. student in Electronic Arts Heather Dewey-Hagborg, who makes 3-D "masks," or "portraits," of the faces of unknown individuals using the DNA they unwittingly discard on such things as cigarette butts and chewing gum. The media coverage has conjured an Orwellian dystopia for readers (check out the first few comments on the NPR piece for a sample). The artist herself apparently shares these concerns. In addition to her upcoming exihibit, Stranger Visions, she will be leading policy discussions on the implications of her art. She's also working with the Delaware medical examiner's office to try to identify the remains of a 20-year-old body.

The problem? As I commented over at Bill of Health, based on what she's said about her methods, they do not allow her to predict someone's face with anything but the crudest of guesses.

Matthew Herper of Forbes took my criticisms and those of others directly to the artist. I confess that her response does not make me feel any better. Even if you're "only" engaging in art, it seems to me that when that art has an obvious science policy message — indeed, one that you invite — you have some obligation to be clear about how "speculative," as she puts it, your art is. But when you decide to move from the world of art into the world of science, and to start leading policy discussions based on your speculative art and working with forensic examiners? Then you really have a strong duty to be very clear about what your work does and does not mean. Among other things, you should take care when talking to the media, and correct the media if they get it wrong. (This is, of course, a lesson that applies to all scholars, including legal scholars, not only to scientists.)

Yesterday, the Social Science Genetic Association Consortium, an international consortium that pools and conducts social science research on existing genome-wide association study (GWAS) data, and on whose Advisory Board I sit, published (online ahead of print) the results of its first study in Science. That paper — "GWAS of 126,559 Individuals Identifies Genetic Variants Associated with Educational Attainment" (plus supplemental data) — like much human genetics research, has the potential to be misinterpreted in the lay, policy, and even science worlds. That's why, in addition to taking care to accurately describe the results in the paper itself, including announcing the small effect sizes of the replicated SNPs in the abstract, being willing to talk to the media (many scientists are not), and engaging in increasingly important "post-publication peer review" conversations on Twitter (yes, really) and elsewhere — we put together this FAQ of what the study does — and, just as important, does not — show. So far, our efforts have been rewarded with responsible journalism that helps keep the study's limits in the foreground. Perhaps Dewey-Hagborg should consider issuing a similar FAQ with her speculative art.

[Adapted from a post and comments at Bill of Health]

Rawls! The Musical!

The O'Reilly Theater at Keble College, Oxford recently played host to a new show: John Rawls's A Theory of Justice: The Musical!  It was billed as "an all-singing, all-dancing romp through 2,500 years of political philosophy."

Here's a trailer from the show:

A Theory of Justice: The Musical - trailer from Tom Edkins Films on Vimeo.

 

Here's the official description from Vimeo:

In order to draw inspiration for his magnum opus, John Rawls travels back through time to converse (in song) with a colourful cast of political philosophers, including Plato, Locke, Rousseau and Mill. But the journey is not as smooth as he hoped: for as he pursues his love interest, the beautiful student Fairness, through history, he must escape the evil designs of his libertarian arch-nemesis, Robert Nozick, and the objectivist seductress, Ayn Rand. Will Rawls achieve his goal of defining Justice as Fairness?

The world’s first feature-length musical about political philosophy showcases a script steeped in drama, humour and romance - with a musical score that covers everything from rap battles to power ballads.

Based on the ground-breaking philosophical book "A Theory of Justice" (1971), this exciting new musical was met with critical acclaim when it opened in Oxford in 2013. Philosopher Nigel Warburton called it "brilliant: hilarious witty and profound... I cried with laughter for most of two hours!"

A crisp student review of the show is here in Philosophy Now.  There are apparently plans to bring the show to the U.S., but those who don't want to wait can download the full production for $9.99 here.

Anyone working on Habermas: The Musical? Sunstein: The Musical?

Trolls

Nice little bit from artist Vi Hart over at Brain Pickings. Taming the Trolls.  A little uncomfortable psychoanalysis in the piece if negative comments get you down (which they do me from time to time). Brain Pickings is a great site and offers lots of wonderful tidbits of interest to academics and non-academics alike -- most of which have nothing to do with trolls and such.

The Return of Jonah Lehrer, Apparently

So last night, the Twitterverse discovered, seemingly by accident, that today at noon, Jonah Lehrer will make his first public appearance since his spectacular fall from grace after admitting not only to self-plagiarism but also to borrowing from other writers (including his friend Malcolm Gladwell) without attribution and fabricating interviews and sources. His appearance will come in the form of a keynote address at the Media Learning Seminar 2013, sponsored by the Knight Foundation. The organizers of the event report that Lehrer will give a typically Lehreresque talk on the neuroscience of decisionmaking, including the decisions that led him to defraud his readers. In case you aren't in Miami, it's your lucky day: the event, including Lehrer's talk, is being livestreamed here.

As some have pointed out (see the comments, too), this was a pretty soft launch for what organizers are only now saying, after Twitter and its many angry fellow science writers discovered Lehrer's scheduled appearance, will include a mea culpa from Lehrer. The fact that the conference bio of Lehrer makes no mention of his misdeeds, including the fact that the publisher of his most recent book, Imagine, took the unusual step of recalling all copies of the book, does not inspire confidence that either the Knight Foundation or Lehrer initially intended this to be a thoughtful, appropriately contrite reflection on what happened. Lehrer's former colleague, collaborator and friend, the science writer David Dobbs, for one, is pretty angry. He says that he and others he knows are owed, but have not received, apologies from Lehrer, and he has pressed the conference organizers to put a few questions to Lehrer today.

As for Lehrer's anticipated discussion of the neuroscience of plagiarism and fabrication, I confess that my expectations are low. I've always thought that by far Lehrer's biggest sin was not his self-plagiarism, his more traditional plagiarism of others' work, or even his fabrication of Dylan quotes. Reusing text from his blog in a New Yorker post is between Lehrer, his God, and the various people who paid him for unique content, but I can't get very worked up about it on behalf of his readers. And as for his "old fashioned" plagiarism, that is, of course, a serious misdeed, but Gladwell readily forgave his friend, and Dylan, not surprisingly, doesn't seem to care.

As a serious consumer of social science and one interested in how it is produced and communicated, for me, Lehrer's biggest sin will always be the poetic license he took with science in the name of crafting a sexy and sellable just-so story. (Lehrer's fellow science writers who were denied the opportunities Lehrer has been given, in part because they insisted on engaging in careful and responsible — but less sexy — science communication are also victims of this sin.) You can read more about that here. (Disclosure: Lehrer's interlocutor in this exchange, and in an earlier New York Times book review of Imagine, is my husband. I also watched with some irritation as Lehrer came close, as the scandal unfolded, to blocking publication of their interview. Discount accordingly.) 

Update: The archived video of Lehrer's talk is here (the conference organizer begins moving in the direction of an introduction to Lehrer at around the 1:00:30 mark, and Lehrer himself starts at around the 1:03:30 mark). As others have remarked, the paralells to Lance Armstrong's mea-culpa-cum-comeback are hard to miss. Also of note: the giant screen behind Lehrer scrolling live tweets, most of them critical of him. No doubt the $20,000 Lehrer was paid for the talk helped ease the pain.

Update 2: Image above is an ironic screen shot from Poynter.org, which first reported Lehrer's fee, which Knight is referring to (also ironically) as an "honorarium."

Update 3: Aaannd...updated title to reflect that the speaker in question is in fact Jonah, not Johan, Lehrer.

The Jurisprudence of Django

Well, I've finally been able to set aside time to see Django.  Though I rarely see first run movies, I make an exception when they relate to Jim Crow or  slavery.  Wow.  So much to talk about, like the depiction of slavery -- and especially the law of slavery and slave sales.  I was pleasantly surprised -- shocked might even be the right word -- with how much law is in that movie; jurisprudence even more so.

As we were walking into the theater, my colleague Rob Smith asked if I thought there'd be a character like Fed in it?  I paused for a moment and said, probably.  That requires a little explanation.... Turn back to the late summer of 1831 during the Nat Turner rebellion.  As panic swept Southampton where the rebellion was taking place, in neighboring Sussex County slave-owners worried what would happen when the rebels reached their county.  The rebellion never got there, but that didn't stop people from preparing to meet rebellion with violence -- and with violently responding to perceived threats to slavery.

One slave-owning family was convinced that their slave Fed would join the rebels and they repeatedly spoke about it in the presence of their slaves.   I wonder about who Fed was and why his owners were so convinced he would join the rebels.  Upon hearing the speculation that Fed would join the rebels, one slave said in essence -- yes, and I'd join them too.   At trial a few weeks later, as the white community sought to regain control and retribution, that slave who said he would join the rebels was sentenced to death.  Fed, however, was not convicted -- for he had never said anything.  Fed's fellow slave was convicted of plotting rebellion; Fed, who may very well have harbored designs of freedom through rebellion, was returned to his owner to suffer what fate we will never know.

I suppose Django's character has a lot in common with Fed -- and maybe with Nat Turner, too.  What surprised me about the movie was not the violence -- in fact, if anything it was less than I expected.  I guess it's because these days I'm so used to the extraordinary violence that lay at the heart of slavery that the scene of the slaves fighting to the death for the amusement of Candie -- or the dogs tearing the run-away slave apart wasn't all that suprising.  (I had initially written disturbing, but that's obviously the wrong word -- it was incredibly disturbing, just not out of keeping with what one might expect in this kind of movie.)  I'm used to reading descriptions of extra-ordinary brutality -- not so much for amusement of the owners, though it wouldn't surprise me if that was part of slavery -- as for money and control.  I mean, "Blackhead Signpost Road" got its name from the head of a supposed rebel that was placed on the road into Jerusalem, Virginia, as a warning to other rebels.

Two things particularly interested me about this, which I want to talk about now.  First -- and some of this is sort of transparent -- is the role of law.  There are three scenes of slave sales, where contracts (and particular warranties) loom large.  Maybe Ariela Gross should be writing about this instead of me, because she is the leading scholar on slave warranties, but wow I find it interesting that the movie is so framed by law.  There's the opening scene with the "sale," the talk of drawing up a contract for the sale of "Eskimo Joe," and the bill of sale and manumission document of Broomhilda.  But law is present in a lot of other places, too.  It frames what bounty hunters can do and on several occasions the community that's rising up against the bounty hunters accepts that there was a legal justification for killing.  They even go to a local records office to see who purchase Broomhilda.  I mean, how unexpected to find a title search in a Tarantino movie?!  And then there's the pervasive talk of property -- of how Candy can do whatever he wants with his property.  Tis is straight out of Harriet Beecher Stowe's Uncle Tom's Cabin.  And pretty closely related to Thomas Ruffin's State v. Mann.

Second is the jurisprudence of all of this, such as how the bounty hunters justified their killings of both the people they're seeking and the slave-owners at Candyland.  Maybe the most poignant scene of several in this regard is when Django kills a man who's plowing a field.  Obviously Django is doing his job (and also extracting punishment for past crimes), but he's bothered that he's killing a person with a family.  This may inspire people to go back and think again about the duties of people caught up in a system that is violent -- or in the case brutally oppressive.  I guess Django is in some ways like the anti-slavery judges that Robert Cover (and Harriet Beecher Stowe) wrote about, who recognize inhumanity, but still engage in the system.  Or maybe like lawyers for slaves, who try to work within a system that is unfair but still seek some balance for their clients.  Shades of Melville's statement in Moby Dick, "who ain't a slave?"

And what do we make of Dr. Schultz' final words after shooting Candie, "I had to do it."  (Or maybe it was "I couldn't resist.") In the moments leading up to the shooting, he was turning over in his mind Candie's order to have D'Artagnan fed to the dogs.  Schultz, though quite dependent on law for his living -- and someone who recognized the constraints of law (he convinced Django that they couldn't just go and rescue Broomhilda) -- he stepped outside of the southern law and he did so because he believed he had to.

I'm going to think on this some more.  Books and writing are all over this movie -- the contracts and receipts for sale; the record books; the wanted handbills; ... even the library at Candyland, where Dr. Schultz went to look for a copy of Alexandre Dumas' Three Muskateers.  God I love the history of the book.  One final thought -- don't you love how Broomhilda's emancipation papers were a pre-printed form?!  Further evidence of how far the technology of printing was put to use by law.  And one of these days I'll talk about the cemetery scene, too!

Want to know more about Fed?  My paper on "The Nat Turner Trials" is up on ssrn.  I talk a lot about Fed in there -- check it out.

American Folk Art in the Nineteenth Century

I think you may enjoy Roberta Smith's article in today's New York Times, "Curator Tear Down These Walls," which argues for the integration of pre-twentieth century folk landscape paintings into the display of more stylized, high-brow landscapes.  But, hey, legal historians have been studying the two genres side-by-side (as if there were not difference between them) for a while.  Or, perhaps I should say, pre-Civil War landscape art of all types reflected the ideas and aspirations of the ownership of -- and dominion over -- property.

I was thinking about how landscape art reflected the pre-war concern with dominion over the land as I was reading Steven Brown's charming new volume on Supreme Court Justice John McKinley.  While in the Senate, McKinley stood up for the rights of squatters who'd improved public land and then sought title to them.  As Brown points out, "the very improvements wrought by squatters that gave 'purpose to the soil' also made the land much more valuable.  Consequently, squatters on public lands often faced the worst possible combination of circumstances: they had cleared the land, built their homes and barns, established their crops, and then found out that the land they had improved was now too valuable for them to purchase at public sale."  The image of property conveys well the work that squatters -- and other settlers -- did to clear the land and links the law to those practices.

The image of "Lake George and the Village of Caldwell" is in the collection of the Metropolitan Museum.  It's one of the illustrations of the Times article, though I think I might have used something from, oh, American Scenery.

Do You Want to Know Who Owns a Gun (on Your Faculty)?

The Journal News, a local publication based in Westchester County, New York has published an interactive map of the names and addresses of  pistol permit holders in Westchester and Rockland Counties.  Officials in nearby Putnam County (NY) have declined to release the information in response to FOIA requests.

The publication of the map has resulted in threats to the publishers, prompting the Journal News to hire armed guards to protect the organization's offices (see news coverage here, e.g.).  Public opinion on the appropriateness of the publication of the information is divided (see, e.g., here). 

In some parts of the country, in some towns and cities, at some universities, gun ownership may be part of the culture.  Not so in my slice of New York or at my institution, though.  Given that 40% of my faculty colleagues live in Westchester or Rockland County, I admit that the map piqued my interest.  After some hesitation, I did look at the map (as did lots of other folks; apparently the map is the most popular feature on the website of the Journal News).  I admit to feeling somewhat uneasy about the act of looking, though, for reasons I can't quite articulate.  On the one hand, I believe that all state licenses should be a matter of public record.  On the other hand, I can imagine that if I were a gun owner in Westchester or Rockland County, I might not want that information available to my neighbors.

Commemorating and Teaching the Emancipation Proclamation (and Farewell!)

Today marks the 150^th anniversary of the Emancipation Proclamation. In case a primer is in order, the National Archives has posted images and a transcript of the original document. Over the next year, libraries, museums, and universities will be commemorating the Proclamation with public lectures, conferences, workshops, and exhibitions: As an example, the Schomburg Center at the New York Public Library has on display “Visualizing Emancipation,” an exhibit of eighty antebellum and postbellum photographs of enslaved and free persons. It would be great to know if any of you are teaching the Proclamation to your law students; if so, how and in what classes?  I am not teaching Property this semester, but plan to include a mini-module on the Proclamation when I teach it again this Fall.

Today also marks the end of my stint in the Lounge. I have fully enjoyed the community and appreciate the opportunity to engage here; and even though my trivia skills remain lackluster, I look forward to rejoining the ranks of the blog’s avid readership.  Keep those hard-hitting posts coming, fellow Loungers . . . and Happy New Year one and all!

Ranking the Amendments

Earlier today, sports blog Deadspin posted a list ranking the amendments to the Constitution. According to editor-in-chief Tommy Craggs’ algorithm – which is not explained in the blog post – the Fourteenth ranks first, followed by the Fifth and Fourth, respectively. The Second ranked dead last.

I’m sure we all have our favorite amendments (“favorite,” in terms of our scholarship and “favorite,” in terms of our personal constitutional politics); where would you rank the Second? Or any of the others? Given the choice, I’d probably rank the Fourteenth and the Second close together; both are ambiguous enough to remain subject to highly-contentious judicial construction. I’d probably rank the Third somewhere near the top, since the prospect of quartering a slew of soldiers in our NYC apartment seems particularly unsavory to me.

Are there others?

 

“Civil Rights” Acts (Or, How The Post Office Gets It Wrong)

The Postal Service has commissioned a commemorative “forever” stamp in recognition of the sesquicentennial of the Emancipation Proclamation.  Stamps are (appropriately) not shipped until January, but are available for pre-sale now. The Emancipation Proclamation stamp is one of three stamps in a “civil rights set” that the Postal Service has commissioned for 2013.  One of the other stamps commemorates the birth of Rosa Parks.  The third stamp in the set has yet to be revealed. 

I think the stamp is a great idea (and I will use these throughout the next year); I wonder, though, why the Proclamation is lumped together with the civil rights movement. Presumably, the historians at the Postal Service are aware of the Proclamation’s history (including the 1862 Preliminary Proclamation) and desired effect; it was never intended to – and never did - grant “rights” to any person. The Proclamation effectuated a war goal, and clarified for Union forces how enslaved refugees (or “contraband”) ought to be treated under the rules of war (in parts of the Union-occupied Carolinas, for example, several thousand persons were “freed” due to the Proclamation).  While its symbolism sent a powerful message to enslaved people in the Confederate and border states (and more broadly, to the nation and Europe), relatively few walked free because of its dictate. In fact, outside of Union-occupied territory, tens of thousands of enslaved men and women would subsequently have to risk life and limb to reach Union lines in order to realize the Proclamation’s promise. Steve Hahn’s excellent book (A Nation Under Our Feet, on Amazon) is great on this point – between Fort Sumter and Appomattox, enslaved folks took emancipation into their own hands and (at least physically) freed themselves. Do these self-emancipators have a place in traditional tellings of this story?  Do they have a place in our legal histories of this period? Was the Proclamation a "civil rights" act?

Scarlett, Tara, and the Personality Theory of Property

Like Al, I also watched several hours of “Gone With The Wind” on Thanksgiving Eve (don't judge - there was a marathon!).  GWTW has fascinated me for as long as I can remember, but this time, I was most struck by Scarlett's pitch perfect demonstration of the personality theory of property.  This is evident throughout the film, and most notably in the last scene, where Scarlett hears the voices of her dearly departed father and Ashley Wilkes in her head.  After Rhett abandons her, she asks aloud, "What is there to do? What is there that matters?" and the following exchange ensues:

Mr. O'HARA: You mean to tell me, Katie Scarlett O'Hara, that Tara doesn't mean anything to you? That land is the only thing that matters. It's the only thing that lasts. 

ASHLEY: Something you love better than me, though you may not know it.

Mr. O'HARA: Tara - this is where you get your strength.

ASHLEY: Tara - the red earth of Tara.

Mr. O'HARA: That land's the only thing that matters, it's the only thing that lasts.

ASHLEY: Something you love better than me, though you may not know it, Tara.

Mr. O'HARA: ...From which you get your strength... 

ASHLEY: ... the red earth of Tara.


Mr. O'HARA: Land's the only thing that matters... 

ASHLEY: something you love better than me...

BOTH:  Tara...Tara!... Tara!... Tara!

SCARLETT: Tara! Home. I'll go home..... 

Tara is the place where Scarlett achieves self-realization.  It is the place where her memories and ambitions are rooted.  It is also the place over which Scarlett asserts an entitlement that is superior to that of either of her sisters (and fellow heirs) Suellen and Carreen (recall the great scene where Scarlett bosses the sisters around, forces them to pick cotton, and then slaps Suellen for yelling "I hate Tara" in the fields).  I know there are some GWTW fans out there - what other theories of property are on full display in the film?

"Every word is like an unnecessary stain on silence and nothingness." Samuel Beckett Welcomes You to the Fall Semester.

This takes me back to my days of writing about existentialism. Good times.

The Death of the Suit?

    At my law school, particularly before we merged with the University of Massachusetts, many of the students were not familiar with business dress. Our school is located in an area that has many first and second generation immigrants and has a history that is more blue than white collar. Because of this, many on our faculty attempt to model “proper” business attire for an attorney by dressing in a style that is conservative, traditional and main-stream.

    Recently, I have had the chance to visit several major U.S. cities and have noted a big change in general dress standards. For example, on recent trip to NYC, I dined at several top-drawer restaurants, Le Bernardin, for example (deserving all of the accolades it has gotten, by the way). Ten years ago, no sane person would think about entering that style of a restaurant without wearing business attire; indeed, many top restaurants had and enforced a dress code. On my recent trips, however, I found that business attire is now the exception with many diners wearing much more casual attire, i.e., shorts and a polo shirt in Le Bernardin. I found the same thing to be true in other cities in both the South and West.

    My question is whether the time spent talking to students about business attire is now wasted. After all, it wasn’t long ago that no lawyer would enter a courtroom with less than a wig and robe. Is business dress dying?

The Last Polka

My guest blogging began with a post in memory of The Band’s Levon Helm.  I would be remiss if I did not circle back by sharing a hidden gem and seeking other Shmengeheads. 

The Shmenge’s Last Polka is a mockumentary about brothers, Yosh (John Candy) and Stan (Eugene Levy) Shmenge, retiring from a long and illustrious career as the greatest Polka duo ever.  The format follows Martin Scorsese’s classic, The Band The Last Waltz.  The Shmenges were born on Second City TV and also known as the Happy Wanderers.

 Unfortunately, this classic has not made its way across the digital divide and is not (yet?) available on DVD, or whatever we’re using now.  Fortunately, a fellow Shmengehead posted the film in several parts in cyberspace. Here’s a part of the film with a Linsk Minyk (Rick Moranis) sit-in and banter.

 Thank you to the Lounge regulars for sharing their forum and to all the readers for sharing their time.  I hope to see/meet you at SEALS later this summer or somewhere down the So Many Roads we all know.

Cheers,

Joe

p.s. The last link above is to a late era Robert Hunter / Jerry Garcia song.  Jerry flubs a few lyrics, but this inspired performance from the Boston Garden in 1994 is worth seven and a half minutes of any music lover’s time, at least once.  For some reason, Jerry vocally wails on “to heal my soul” at the end, instead of the usual “to ease my soul.”

 p.p.s. RIP Doc Watson.  Sitting on Top of the World

 

I'm the Slime?

As the Supreme Court’s second decision in three years in FCC v. Fox Television Stations, Inc. nears, a brief history of indecency regulation may be of interest and begins with a tie to music.

In 1970, the FCC levied its first indecency fine.  The FCC fined a Philadelphia non-profit educational radio station, WUHY-FM, $ 100 for broadcasting a pre-recorded interview with Jerry Garcia.  Garcia interspersed his musings on a vareity of topics with indecent language, such as "political change is so fucking slow." No one complained about the broadcast.  The FCC was monitoring the radio station.  In dissent, Commissioner Nicholas Johnson conveyed bewilderment and disdain about the FCC’s decision to fine this particular station:

[W]hen we do go after broadcasters, I find it pathetic that we always seem to pick upon the small, community service stations . . . It is ironic to me that of the public complaints about broadcasters' ‘taste’ received in my office, there are probably a hundred or more about network television for every one about stations of this kind. Surely if anyone were genuinely concerned about the impact of broadcasting upon the moral values of this nation — and that impact has been considerable — he ought to consider the ABC, CBS and NBC television networks before picking on little educational FM radio stations that can scarcely afford the postage to answer our letters, let alone hire lawyers. We have plenty of complaints around this Commission involving the networks. Why are they being ignored? I shan't engage in speculation.   Download In Re WUHY FCC 1970

In 1975, the FCC received one complaint because a New York radio station broadcasted George Carlin’s Filthy Words monologue in the afternoon.  In 1978, the Court held in FCC v. Pacifica Foundation that regulating indecent speech on broadcast radio and television did not per se violate the First Amendment.  The Court based its decision on the dual rationales that broadcast radio and television are uniquely pervasive in society and that they are uniquely accessible to children.  Justice Powell’s concurrence made clear that the Court did not decide whether the isolated use of a potentially offensive word could be regulated and that the holding was limited to the specific context of Carlin’s “verbal shock treatment.”

For a quarter-century, the FCC maintained that fleeting expletives did not rise to the level of indecent speech.  But, after Bono used a fleeting expletive when receiving a Golden Globe award, and Cher and Nicole Richie made similar transgressions on the Billboard Music Awards, the FCC reversed course and issued its 2004 Golden Globe Order finding that any use of the words fuck or shit is inherently indecent, except for a couple of exceptions.

 In 2009, the Court held 5-4 that the FCC rule change did not violate the Administrative Procedure Act’s arbitrary and capricious standard.  Justice Stevens, who wrote the majority opinion in Pacifica, dissented in Fox I.  Now, the Court considers whether the FCC’s indecency regulation violates the First or Fifth Amendments.

One would be hard pressed to argue that broadcast radio and television are still uniquely pervasive in society and uniquely accessible to children in light of the numerous media technologies that exist, especially considering the ubiquity of mobile devices with internet access.  Not only do the rationales of Pacifica fail to reflect the realities of 2012, advertisements like the Go Daddy commercials that air during the Super Bowl and for products like KY Intense, an “arousal gel” make futzing around with fleeting expletives a rather futile exercise. Justice Stevens made a similar point in a footnote to his Fox I dissent: "It is ironic, to say the least, that while the FCC patrols the airwaves for words that have a tenuous relationship with sex or excrement, commercials broadcast during prime-time hours frequently ask viewers whether they too are battling erectile dysfunction or are having trouble going to the bathroom."

Here’s Frank Zappa performing, I’m the Slime on Saturday Night Live in 1976, complete with guest vocals by Don Pardo.  Zappa’s take on the slime oozing out of the tv set is more aligned with Commissioner Johnson’s WUHY-FM dissent, than a concern about “bad words.”

Life is a Carnival

Thank you to Jacqui, Dan and everyone for welcoming me as a guest here.

On April 19, 2012, Levon Helm died.  Before he left this world, he left us with much to celebrate.  Today, I thread The Band through this post to introduce myself and to pay tribute to a great drummer, singer, lyricist and person.

One of my fond high school memories is driving from Cincinnati, Ohio to a Notre Dame home football game with my father, Joseph P. Tomain, Dean Emeritus at the University of Cincinnati College of Law.  We drove in his, later to be mine, 1984 Corolla.  I don't remember who they played or if they won.  I do remember that our '84 Corolla lacked a cassette player. So, we brought a boom box.  We listened to the live recording, Before the Flood, by Bob Dylan and The Band. 
I'll always remember that trip and that boom box playing Before the Flood from the backseat. It's amazing how music can place and hold memories in our lives.  I went on to attend Notre Dame for undergrad and law school.

Speaking of Notre Dame, I enjoyed tuning into The Daily Show in March 2012 to see my Contracts professor, Cathleen Kaveny, discussing her forthcoming book, Law's Virtues: Fostering Autonomy and Solidarity in American Society.  My favorite line of the interview came when Stewart asked Kaveny, what's the difference between a Catholic institution providing health insurance that includes contraceptive coverage and paying an employee a salary who later spends some of that money on contraception.  Kaveny's reply:   "You could be a moral theologian."  Nice work, Prof. Kaveny!  The Band have their moments of moral theology, as well.  (see e.g. When You Awake).

Speaking of teaching Contracts, when I send an email to my class, I usually quote some lyrics and provide a link to a version of the song below my signature.  After Levon passed, I quoted "The Weight" and included a RIP for Levon.  While a few students had commented on evaluations that they enjoyed these treats at the end of my emails, none ever brought it up in person, until this one.  A twenty-something student stopped me after class to say he enjoyed the quote and had recently been watching Martin Scorsese's The Last Waltz in memory of Levon.  I'm happy to know that some students find a connection in this extra-legal dialogue.

Finally, I play in an Ultimate Frisbee league in Jacksonville, Florida.  (A couple of law students play in the league as well. Like the vast majority of Ultimate players I know, these law students are great people.)  When my team captain solicited ideas for our team name, I offered a few names in honor of Levon.  Our team adopted the name, "Cripple Creek."  While I'm thankful these youngsters indulged me and took a liking to Cripple Creek, my favorite team name idea was, "The Shape I'm In." (could be better, could be worse, but I digress)

Throughout May, I look forward to combining my love of law and music with various topics to share with the Lounging community.  And remember, Life is a Carnival.  Enjoy Being!

Office Disorganization by the End of the Semester

Well, my office isn't as bad as the one shown below, but I'd better get to cleaning.

Actually, the picture is of Madrid-based artist Alicia Martín's Biografias, a 2003 site-specific installation at the Casa de America in Madrid.  Her gallery info is here.  I love her book art.

image (c) 2003 Alicia Martín, Biografias

The Law Professor as Novelist

Why would a law professor write fiction?  Scott Douglas Gerber (Ohio Northern) answers that question in the National Jurist here (free registration required; sorry).  Here's the kernel of his advice:

For those of us who don’t teach at Yale, Stanford, Penn and the like, it’s much more difficult to get fiction published than it is nonfiction.  Like it or not, those of us toiling in the hinterlands have a tougher time getting the attention of New York literary agents and publishing houses.  But, as a novelist friend once reminded me during one of my many moments of frustration about how the publishing industry really works, if you write fiction because you enjoy is – nothing more, nothing less – you will never regret that you do.

"Write because you enjoy it" is a good maxim, but what about those for whom writing -- even non-fiction -- is painful and difficult?  "Enjoy it because you have to do it" may be more apropos. 

As for me, I'm squarely in the "I hate to write; I love having written" camp.  Incidentally, does anyone have a cite for that quote?  I've seen it attributed to Robert Louis Stevenson, Eudora Welty, Dorothy Parker, and others.

The Talk of the...Bench

Of the 327 films I watched to select the films for Advocacy to Zealousness, one of my favorites is The Talk of the Town (1942), which chronicles the experiences of a persnickety law professor who is trying to complete a book while a felon secretly hides in the attic of the cottage he is renting for the summer. The felon is brilliantly portrayed by Cary Grant (pictured, far left, and born today in 1904). The storyline includes the possibility of the professor's appointment to the U.S. Supreme Court. With the recent appointment of Associate Justice Elena Kagan, we know that such an honor -- although somewhat rare in recent times -- is far from fictitious. So, in honor of this wonderful film, and what would have been Grant's 108th birthday, today's question concerns High Court appointments. Which current law professors or deans would make good candidates? (Bonus points will be awarded to anyone who can list Cary Grant's given name.)