Category: Culture

29

Shoplifting At Wal-Mart

According to NY Times accounts, Wal-Mart has decided to cut shoplifters a bit of slack. If you’re under 18 or over 65, and try to swipe merchandise under $25 (and it’s your first time being caught by Wal-Mart security), they’ll give you a tough lecture and send you packing. Why the generosity? The article suggests – and this is surely true – that the local infrastructure (i.e., the cops and local prosecutors) don’t like to foot the bill for enforcing shoplifting laws. This raises some interesting questions. First, should shoplifting be a crime? Probably, if only because if allowed to grow, it would (in aggregate) devastate retailing. Second, who should bear the cost of shoplifting enforcement? Perhaps the right answer is the retailer. Offenders are the logical payors, but they are often too poor to bear actual costs. And while society at large could pay the cost (and does, right now), it seems to me that it would be easier to impose the tax on the retailer. Why? Because, in many respects, the retailer is in the best position to reduce theft. Cameras, good layout, ever-present security all help reduce attempted thefts. If stores see that they save more than mere shrinkage by stopping shoplifting, perhaps they’ll introduce those preventive steps.

In my experience, shoplifting cases are a major source of docket junk in criminal courts. DA’s typically don’t care much about them. The victims – and there are real victims – are mostly corporations, and these corporations don’t get exercised like other victims. To the DA, the company’s face is the security guard who shows up to testify – and he or she is usually a low-paid worker bee who doesn’t much care the outcome of the case.

Sounds to me like Wal-Mart is just trying to get along better with the local community. Perhaps they should talk to Target, a leader in the national fight against crime, for tips.

27

Who’s Your Daddy?

The New York Court of Appeals has held that:

[A] man who has mistakenly represented himself as a child’s father may be estopped from denying paternity, and made to pay child support, when the child justifiably relied on the man’s representation of paternity, to the child’s detriment. We reach this conclusion based on the best interests of the child as set forth by the Legislature.

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The case is Matter of Shondel J. v. Mark D.

The opinion indicates that under New York law the doctrine of estoppel in paternity matters focuses on the child and as such is gender neutral. The court demonstrated this neutrality by citing to a case where a wife was not allowed to challenge paternity when she had treated and accepted the husband as the father for two and half years before challenging his paternity and “permitted her husband and child to form strong ties together.”

The court also noted that when a man “acquiesced in the establishment of a strong parent-child bond between the child and another man” he would be precluded from asserting paternity because “the child would be harmed by a determination that someone else is the biological father.”

This case reminded me of Jared Diamond’s, The Third Chimpanzee. In that book he noted that one study indicated that 10% of babies in the study were not biologically related to the legal father. One blog has dug into the mistaken paternity numbers issue and lists several studies before concluding that the rate may be closer to 2-4%.

By the way one study seems to show that when a father is pretty certain about paternity the rate of finding non-paternity is low (median 1.7%) but when the father has questions about paternity the rate is high (median 29.8%). The full paper is How well does paternity confidence match actual paternity? Evidence from worldwide nonpaternity rates by Kermyt G. Anderson.

Which bring us to the dissent in the case. Judge Smith argues forcefully that the evidence shows that the mother lied and committed fraud (she swore she did not have sexual relations with any other man) and that the ostensible father did not commit a fraud of any sort and as such should not be subject to the doctrine. The argument denies the majority’s position that the child is the one upon whom the fraud is committed.

The majority opinion countered the dissent by putting the problem this way:

Given the statute recognizing paternity by estoppel, a man who harbors doubts about his biological paternity of a child has a choice to make. He may either put the doubts aside and initiate a parental relationship with the child, or insist on a scientific test of paternity before initiating a parental relationship. A possible result of the first option is paternity by estoppel; the other course creates the risk of damage to the relationship with the woman. It is not an easy choice, but at times, the law intersects with the province of personal relationships and some strain is inevitable. This should not be allowed to distract the Family Court from its principal purpose in paternity and support proceedings — to serve the best interests of the child.

Thus it seems that if someone is in that high doubt range that Anderson documents, he should ask for a paternity test and risk his relationship with his wife.

I do not claim to have an answer here. I am merely teeing this one up to see what comments if any can enlighten me on the issue of when paternity should be found despite a lack of biological connection between the father and child.

3

What Does Maria Bartiromo Think About AIDS?

When I read the following parargraph from yesterday’s NY Times article about the new once-a-day AIDS pill, I shook my head. Is public health really just a market issue? Was this the most natural way for Andrew Pollack to frame the story? Was I the only person to do a double take?

The drugs in the new pill already constitute the most widely prescribed regimen in the United States, and one of the most effective. Doctors and securities analysts expect most people now taking Sustiva and Truvada separately to switch to the new pill.

4

Strict Liability For Parents

Alabama’s most affluent suburb, Mountain Brook (home of Natalee Holloway, whose apparent abduction and murder in Aruba was a Greta Van Susteren / Nancy Grace panic-TV staple), is considering adopting a new “open house party” ordinance. It would fine homeowners when two or more underage people drink alcohol in the house. On the third offense, the law provides that the homeowners would be guilty of a misdemeanor. Homeowners, by which we really mean parents, would be criminally liable even if they were unaware that kids were drinking in their homes. They are strictly liable – guilty even if they had no intent to break the law, had no knowledge it was being broken, and were not even negligent in allowing the infraction to occur.

In my juvenile justice class, I ask whether it is really possible for parents to control their kids’ behavior. Inevitably, most people say no. “You can’t control what kids will do.” I then ask about the efficacy of a statute holding parents financially liable for all damage caused by their children. Most students think this would provide only a limited incentive to control children. In the end, my students insist, kids are out of parents’ control. Then I push a step further: what if the parents are held criminally liable for whatever crimes the child commits. If a child commits a burglary, the parent is guilty. When little Eddie Jr. robs and kills an old lady walking down the street, Eddie Sr. spends the rest of his life in the pokey. At this point, students see that parents probably can significantly control a child’s conduct. Unfortunately, with such high stakes, they may resort to abusive behavior, such as beating their children or imprisoning them in their bedrooms.

There are really two different issues here. The first is effectiveness. Can a strict liability ordinance punishing parents really affect the conduct of a child? The answer, it seems to me, is yes – provided that the stakes are high enough. I’m not sure that Mountain Brook has raised the stakes very high and a statute that does so may generate unacceptably high collateral costs. The second question is moral. Should a parent be liable for the acts of the child even she worked hard to prevent them? This is tough for me. If a parent is not negligent – she does every single thing a reasonable person would do to keep her child in check – I think it’s hard to justify punishing her. What more can we ask of a parent? On the other hand, perhaps we want parents to go beyond mere reasonable behavior. The reasonable parent seeking to prevent open house parties will lock up the booze and perhaps install a nanny-cam to monitor the house. But maybe we want parents to go further; maybe we want parents to construct their entire lives around teaching children to behave in good ways. Perhaps a strict liability law is really trying to change overall parenting strategies. Mountain Brook wants parents to teach a different value set from early on: don’t disobey parents, follow house rules, don’t break the law.

I doubt the Mountain Brook ordinance will change behavior too much. Rational Brookies will understand that every home is entitled to two open house parties without serious consequence. And I suspect that the local judges will be loathe to burden a community leader with a criminal record, even if little Eddie got a bit wild while his folks were at the beach. But start holding parents strictly liable for the crimes of their kids, and I suspect you’d see a whole new construction of parenthood. And some interesting collateral effects. Parents would quickly give up custody of their “problem children” – burdening the state’s family protection office. On the other hand, some people might think twice about having children before they were able to properly supervise them.

Is strict liability for parents a good idea? I’m not sure that socially tolerable provisions will work, or that effective provisions are socially tolerable. But it’s certainly worth a conversation.

1

Panic! More Private Data Lost

The Birmingham News reported, yesterday, that a computer with private employee data from supermarket chain Bruno’s was lost. An employee with Deloitte put his notebook in checked baggage at the airport. Naturally, it did not reappear on the baggage belt. (The story does not clarify whether the bag didn’t appear, or whether the bag arrived sans laptop.) Apparently the folks at Royal Ahold (the owner of Brunos) have ongoing problems in this regard. Last May, another Ahold supplier lost a computer containing private employee data. Nobody thinks this is a good thing, but is it really newsworthy?

We have seen several stories, recently, about lost or stolen laptops containing troves of private data. These incidents do introduce a risk that the data will be converted to improper uses – most obviously identity fraud – but I suspect that, in most cases, the ultimate recipient of the computer was seeking, well, a computer. In any case, one thing is clear: the media like to find stories that fit into existing news frames. In particular, they like to find stories that fit with growing social anxieties. Thus, a few years back, a couple of drivers went nuts on the road, taking shots at drivers in other cars. Some savvy writer coined the term “road rage”. Suddenly, aggressive acts by drivers – even those that would have been too mundane to report – became newsworthy as proof of surging “road rage.”

So it is, I fear, with misplaced computers containing private data. The good news for Brunos employees is that, given baggage handling norms, the compuer is likely inoperable. And even if does work, it’s probable that the thief – if there be one – simply wanted some additional computing power. On the other hand, maybe that notebook is for sale this very day in at the nation’s lost baggage depot – The Unclaimed Baggage Center – in Scottsboro, Alabama. If so, identity thiefs would be advised to hustle on down before a local farmer buys the unit and accidentally erases pages of highly valuable private information.

6

The Sixth Borough

phillylove.jpgA bunch of New York advertising students were asked by a local paper to create a campaign to draw New Yorkers to Philly. My favorite is featured to the right. Others are here (including a racy one not appropriate for this blog, but which would be worth posting in the West Village).

Of course, the general idea of the campaign seems to be extension of the sixth borough tripe concocted by the Times last August. I resent this trend. But I’d sure like to see a growing population in town.

The weird thing for me about this campaign is that you rarely see one American city target another American city’s residents as potential immigrants in this way (exceptions: the Gold and Land Rushes of the 1800s; Florida and Arizona’s retirement booms). And the idea actually seems somehow unlawful (even though it isn’t). Philadelphia can try to steal New York’s residents, but can’t ban its garbage?

1

New Postal Wonders

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As many of you know, I routinely look to the U.S. Post Office (as well as church elections) to see exactly what’s happening in America. Today I noticed two interesting commemoratives: “Wonders of America: Land of Superlatives” and “Amber Alert”. The Wonders series features 40 stamps, each boasting of a “highest”, “hottest”, “windiest” or otherwise super-est American landmark or feature. (Not surprisingly, the largest delta is the Mississippi River Delta. But did you know the largest flower is the American lotus? Or that the windiest place is Mount Washington? And did our representatives lobby to have features of their own states included? Why was there no “deepest mine”? Or “furriest peach”?)

The great thing about this series is that, with its subtitle “Land of Superlatives”, it seems to be tongue-in-cheek or at least a bit ironic. This is indeed the land of superlatives and hyperbolia. And so in this vein it seems appropriate to celebrate? commemorate? acknowledge? the Amber Alert, one in a series of initiatives produced as a result of moral panic about child abduction. The media has been relentless in flogging the issue of child abduction and murder, generating near hysterical fear among suburban parents. In reality, of course, there are probably fewer than 400 serious abductions of children by strangers each year. (There are far more child kidnappings in total, but these are almost all by non-custodial parents. Amber Alerts can address these crimes, but the creation of Amber Alerts was hardly inspired by concern over custodial disputes.)

As Eric and Dan have discussed, our media live and breathe overheated rhetoric. Is that really something to commemorate and celebrate? The USPS apparently thinks so, but whoever created that Wonders of America: Land of Superlatives series probably knows better.

2

Toto, We’re Not In Alabama Anymore

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I’m in Denver for a conference. Pulling away from the international airport terminal I noticed a portion of the exit road set aside for bikes. Bikes at an airport? And more particularly, bikes on the Arrivals pick-up ramp? They must sell a ton of tandems here in Colorado!

I’m just not sure where you put your suitcase.

2

Andy Warhol’s Electric Chair

My colleague Bennett Capers (Hofstra) has written a fascinating, and rather disturbing, article at the intersection of law and art. Writing about Andy Warhol’s Electric Chair paintings, he asks a series of probing questions – about who the viewer imagines in the chair, and about death as a public spectacle. In this excerpt, he talks more about presence/absence in the paintings:

ReSizedWarholElectricChair.jpgIn Warhol’s Electric Chair series, just as the condemned is both absent and present, so is the State – and this is comforting. Complicity is shared. No one is to blame. Our system of capital punishment thrives partly because of this (joint) presence and absence. The state is present in the very bureaucracy of execution, from the legislative decision to authorized capital punishment to the judicial sanctioning of death-authorized juries. At the same time, the state creates its own absence in diffusing authority among the cast of participants: legislators, prosecutors, jurors, trial and appellate judges, governors with their ability to grant clemency, the executioner himself. And this is what I mean by absence. To borrow from another commentator, the diffusion allows everyone to say, “I’m only doing my job. I’m just a cog in the wheel. I didn’t kill him.” The room is empty, even though it is full.

The article was recently published by the California Law Review.

Photo Credit: Andy Warhol, Electric Chair I (1971), Warhol Family Museum of Modern Art