Category: Culture


Toto, We’re Not In Alabama Anymore


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.


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


Best Of Birmingham. Food, That Is.


It’s the long weekend, so I thought I’d take the opportunity to co-opt the Co-Op and do what so many of us have always wanted to do: announce our own Best Of list. Since I’ll be leaving Alabama in the next couple of months, I thought I’d share some of my own opinions about the good life in Birmingham and beyond. Admittedly, relatively few of our regular readers will be touring the Magic City in the next few weeks. But some will. And a surpsingly number of our visitors arrive via a search engine, rather than their morning web surf routine. So for anyone willing to listen, here are my opinions about food and cheer in Bama.

Best CafeLa Reunion. I’ve previously blogged about the virtues of Starbucks in a town like Birmingham. But I gotta tell you: charging a zillion dollars for wireless really steams me. La Reunion is funky, they inexplicably serve H&H bagels (prepared in NYC, cooked by Marcus Specialties in Birmingham, and offered, as far as I can tell, nowhere else in town), and the wireless is gratis. Also, it’s across the street from V. Richard’s, a gourmet market that offers the city’s best weekend breakfast.

Best Cafe Feature Big City Folk Didn’t Know Existed – The Starbucks Drive-Thru. Imagine this: a prof on spring break, a sleeping baby in the back seat, a Starbucks drive-thru, and the New York Times. Turn your uber-uncool Sienna van into a mobile cafe. Bukowski never had it so good.

Best Feature of Alabama Mealtime – Unlimited refills on all cold beverages. Virtually everywhere. And all restaurants – even chains – give in to the basic demand of all Alabama diners. Sweet tea. I mean SWEET tea. And yes, Virginia. You can order your tea half sweet, half unsweet. I do it all the time.

Best Sushi – Many people will recoil from the very notion of sushi in Alabama. And I did that too until I accepted that a) I was gonna be here awhile and b) its all flown in from far away anyway. Still, one of the more vexing restaurant phenomena in Birmingham is the standard attachment of sushi bar to Thai restaurant. And while Surin West, arguably the best Thai in Alabama (which is not saying that much), has decent sushi, I’ll give the nod to Sekisui. (You’ve got to visit the website just to hear the painful theme song.) Get this: Sekisui is a MEMPHIS (??!?) sushi chain that’s opened up shop in Birmingham. I wonder if Elvis might have been a tad more svelte if he’d dined on a bit of raw albacore once in a while. But no. Always peanut butter and banana.

Best LoxSam’s Club. Let’s face it. I could rename this entry “best reason to move to the northeast.” For those lox lovers who find themselves permanently in Birmingham, there’s always Noshville. Three hours away, that is.

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Harsh Reality: You’re Fired!

So we’re down to the final two of in the latest iteration of Donald Trump’s “The Apprentice.” Ironically, I believe the show has a great deal to teach about the law of the workplace. The show highlights the at-will employment rule, and emphasizes common misunderstandings about the extent of workers’ job security.

Donald Trump’s cavalier method of dismissing his would-be underlings at the end of the show is distressing and troubling. In real life, being fired is a traumatic event. The loss of a job almost inevitably results in financial instability and often a diminishment of one’s professional and personal identities. To see a firing enacted in such a harsh and casual way should be emotionally difficult to watch. Yet the boardroom discussions and Trump’s catch phrase apparently are among the most popular aspects of the show.

When I’ve asked people – especially my students – why the firing on “The Apprentice” appealed to them, a few themes emerged. Some said that they empathized with Trump, because he was dismissing those who had performed poorly. Others, in a display of schadenfreude, admitted that they were happy to see others dismissed, just as long as it wasn’t them in that situation.

As Professor Pauline Kim (Wash U) has empirically documented, many non-unionized workers (and, presumably, many ‘Apprentice’ watchers) do not fully realize the extent of their own job insecurity. Often, people believe that if they show up at the office and do their jobs, absent any obvious difficulties with management or economic downturns, their employment will last. They believe what they think the boss has promised them: continued employment for hard work. But that is not the law.

Indeed, while it may be good management practice to document reasons for firing someone, the law does not require it. Under the at-will employment rule — the law in all jurisdictions but Montana — an employer may fire an employee for a good reason, a bad reason, or no reason at all. Although federal and state anti-discrimination statutes, whistle-blower laws, and other legal provisions put restraints on an employer’s ability to use a bad reason to fire an employee, the underlying at-will regime remains substantially unchanged. The reality of the worker’s bargain looks a lot more like Trump’s deal.

Altogether, reality TV’s portrayal of employment presents a realistically bleak picture for workers. You can work hard, but you still might get fired without notice.

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Senate Vote Suggests Fear Of Gay Love Trumps States Rights

So a Senate subcommittee voted 10-8 to send a bill to the floor banning states from recognizing same sex marriage. Arlen Spector voted for the measure, though he says he opposes it, and perhaps other in the majority did so as well. But this suggests, at minimum, a new level of confidence among conservatives. No longer need they oppose rulings like Roe on states rights grounds. The truth, it appears, is that they don’t care about those rights very much at all. At least those rights pale in the face of gay marriage. I wonder if those many Federalists who take states rights seriously will speak out. I hope so. Perhaps we’re just seeing solidification of a realignment. Democrats increasingly support states rights, and fear the courts. Republicans increasingly love the courts (or at least don’t fear them) and now can stake out fresh territory regulating the typically state-organized institution of marriage.

And a new generation of thinkers will have to decide if abstract meta-issues like states rights are serious business or just a means to an end.


Hi Mom!

Mommybird.jpgToday is mother’s day.

I could do a blog post on the social construction of motherhood; Joan Chalmers Williams’ work about discrimination against mothers in the workplace; or review historian Annelise Orleck’s book about mothers who became political activists.

I could do some, any, or all of these things here, but as I’ve brought my mom to NYC for the weekend, I need to make this brief so that I can spend more time with her.

Therefore, I’ll end with a gentle reminder to call your mom (or other nurturing figure in your life…) today. Otherwise you’ll risk the ire of the plaintiff’s attorney featured in the New Yorker cartoons, who to paraphrase loosely says: “Have your kids forgotten about you? We sue negligent children!”


Review of Apex Hides the Hurt

Apex.jpgIn this latest novel from Colson Whitehead, the (ironically) unnamed protagonist is a “nomenclature consultant” who takes delight in helping corporate American find the best names for particular products. He names a social anxiety drug “Loquacia,” and he names a multicultural band-aid (it is sold in numerous skin tones) “Apex.”

The novel loosely centers around a legal dispute (of sorts), with a city council deadlocked on the rightful name of a growing Midwestern town. Founded by Black settlers leaving slavery behind and striking out for a better life on the plains, the town was originally named “Freedom.” Only a few years later, a wealthy white industrialist brought his factory along with a new name for the town, “Winthrop.” Today the Winthrops are a family in decline, and a new economy entrepreneur wants to rename the town “New Prospera.”

With the city council split three ways, our narrator must arbitrate the dispute. I will not give any spoilers, but the end somehow leaves a number of questions unanswered. And, although filled with clever language, puns, and plays on words – the major strength of this book – the major plot lines fail to grab the reader’s attention, and the characters seem underdeveloped.

It could have been a great book about an unusual legal dispute, or about race in America, but somehow fell short on both accounts. (Points for clever puns though).


Big (Business) Love Is a Bust

biglove.jpgLarry Ribstein, Ann Althouse, and Christine Hurt all have recently commented on HBO’s new series “Big Love.” To one degree or another, each has focused especially on the business-law themes in the show, which they see variously as a source of weakness (Althouse), social commentary (Ribstein), or tremendous fun (Hurt).

For what it is worth, I’m mostly with A.A. here. The show’s evil character, Roman Grant, and its main hero, Bill Henrickson, are engaged in a long-running conflict which nominally regards the scope of profit-sharing clause in a loan agreement. Does the clause cover only the first store Bill built, or later stores as well? I like these issues well enough when I teach them, but as conflict fodder on a nighttime-soap, this is weak gruel. Compare the contract problems in B.L. to the simmering fight between Swearengen and Bullock and Wolcott (and others) on Deadwood about the proper role of law in constraining business, sex, and violence: the better show stands out by a mile. Plus, the writing on Deadwood is better – product, no doubt, of series creator David Milch’s golden pen. I’d give an example, but they are all profane. Notwithstanding Filler’s example, this is a family-friendly blog. Oh, ok, one link.

However, in the last B.L. episode, there was a hint that the conflict between the protagonists will soon move from accounting tricks to religion, as a character suggested that Bill was forced to leave his home at an early age because of Roman’s worry that he was a true prophet. In my view, this would be a good dramatic move. Contract interpretation, even including a neat parole evidence issue or two, simply isn’t sexy enough to compete with T.V.’s other offerings.


Blue Shoes and Happiness

BlueShoes.jpgRecently released: the seventh book in Alexander McCall Smith No. 1 Ladies’ Detective Agency series. The series follows the adventures of detective Precious Ramotswe, who runs a detective agency out of her husband’s garage. In this installment, Mma Ramotswe investigates a kitchen thief, witchcraft at a game preserve, and some instances of blackmail.

I’ve enjoyed these books for some time, and so I was happy to learn that McCall Smith is a law professor at the University of Edinburgh. (I admire lawprofs who are multi-talented). After becoming a professor, he helped establish a law school at the University of Botswana and drafted a treatise on criminal law in Botswana. He has also been a visitor at SMU law school.

Despite the author’s legal background, these books are really not about law, although occasionally it creeps in. Come to think of it, the books really aren’t strictly detective stories either. They’re about ethics, they’re about African culture, they’re about the characters who you feel you already know. More the foundations of law than the law itself.

If you’re looking for a great series to start your summer off right, these books are beautifully written, profound, and life-affirming. And how can you resist a book with the title “The Kalahari Typing School for Men”?