Category: Bright Ideas


BRIGHT IDEAS: Grant McCracken, author of The Chief Culture Officer, on “Hard law, soft law and culture in the court room”

Chief Culture OfficerI am thrilled to be able to share Grant McCracken’s piece, “Hard law, soft law and culture in the court room” as part of our Bright Ideas series. If you do not know Dr. McCracken’s work, I urge you to change that state of affairs. As noted below, he has written many books, but you can begin at his blog, Cultureby which explains “This Blog Sits At the Intersection of Anthropology and Economics.” That idea is what draws me to Dr. McCracken’s work. As some of our readers may know, I am working on a large project about brands as opposed to trademarks. In simplest terms, I am arguing that the law captures only a small part of what brands do and that the legal conception of trademarks is a subset of what the business world and society in general understands as brands. Dr. McCracken’s work is important to law and legal academia, because it looks beyond law and economics and provides new perspectives and new vocabulary to describe and understand commerce and how commerce operates. In that sense, I think he captures the soft law side of culture and intellectual property. Indeed, Basic Books sent me an advance copy of his new book, Chief Culture Officer, How to Create a Living, Breathing Corporation, and I plowed through it over the Thanksgiving holiday including staying up until 3 a.m. one night, because I could not stop reading.

Dr. McCracken’s work will likely challenge those who want a neat, simple explanation for how culture and commerce intersect and interact. So be it. His book is honest, and I think accurate, about the way culture and commerce of their nature require professional study yet demand a flexibility with which many professions are uneasy. I believe that Dr. McCracken will continue this work. As he explains, we are just starting to let culture into the corporation in the open way he describes. As a case for and blueprint of the first generation of Chief Culture Officers, the book presents an excellent argument as to why companies should have a Chief Culture Officer and the key first steps for what such a position would entail (hint this position is not about being ultra-hip and fad chasing; quite the opposite). My guess is that follow-up work will explore how the first generation is doing, identify signs of the next generation, and offer lessons for both. Regardless of what comes next, I am eager to see where the ideas in Chief Culture Officer takes us and highly recommend it.

Dr. McCracken is a Research Affiliate of the Convergence Culture Consortium at Massachusetts Institute of Technology. Dr. McCracken obtained his Ph.D. in anthropology from the University of Chicago where he was the founding Director of the Institute of Contemporary Culture. He has written several books, including Transformations (2008), Flock and Flow (2006), Culture and Consumption II (2005), Big Hair (1996), and Culture and Consumption (1988). He has taught at Cambridge University, McGill University, and the Harvard Business School. In addition, he has been a consultant for many corporations, including Campbell Soup, Coke, L’Oreal, IBM, and the Children’s Television Workshop. Dr. McCracken’s work has been covered by Oprah, the New York Times, the LA Times, Newsweek, and BusinessWeek.

And now, Dr. Grant McCracken:

Hard law, soft law and culture in the court room
By Grant McCracken, MIT

Teaching legal anthropology at Cambridge, I used to draw a distinction between hard law and soft law. It’s not a perfect distinction but some students found it clarifying.
Hard law is the body of rules that comes from the deliberations of jurists, legislators and the precedent of legal discourse. It is relatively formal, explicit, and well documented. It is subject to constant scrutiny, test and revision.

Soft law is the body of rules comes from a shifting consensus contained in social life. It prevails in traditional societies where, typically, there is no written record of what the community believes. Instead, there is a shared, deeply assumed set of notions about what is required, what is prohibited, and what punishment is called for when things go wrong. When soft law changes, it often does so by gradual and invisible consensus.

Hard law and soft law represent two kinds of order. Both help regulate social affairs, but clearly they operate in very different ways. As an anthropologist who studies contemporary culture, I am surprised how often these two forms of law are proverbial “ships passing.” We might expect soft law to proceed without a clear concept of the contents of hard law. But it is odd, I think, that hard law should be created and prosecuted as if soft law does not matter…or does not exist.

Let’s take an obvious example. The famous sociologist Erving Goffman helped us understand that there is a soft law that specifies the “comfort zone” that exists around every individual in public space. The soft law says, something like, ‘you may not come with 24 inches of another individual without provoking suspicion, fear and perhaps aggression in reply.’
I am no student of the law, but it is my understanding that the law does not know from “personal space.” Those who engage in its violation are not culpable. Those who engage in its defense are not defensible. The soft law that constrains the relative position of bodies in social space has no “standing” in the court. But I believe it’s the case that some of the hostilities that require the intersession of the law begin with the violation of personal space. Justice is supposed to be blind in some ways. Why is it blind in this one?

Soft law governs social life meticulously. How we interact is specified by a code that everyone “just knows.” Verbal greetings, physical gestures, and eye movements pass between us constantly. We use them to signal, or withhold, acknowledgment, respect, esteem and deference. In a famous experiment, a sociolinguist decided to see what would happen if he stopped acknowledging his colleagues and staff at work. It wasn’t long before a sense of unease settled over the department, and eventually people began to mutter, “What the matter with Ferguson?” I wonder if the deliberate or inadvertent violations of soft law do not play a part in matters of hard law more often than we think.

We could put it this way. We are bound by soft law contracts before entering into contracts governed by hard law. Indeed, the vagaries of hard law contract may well be the outcome of the vagaries of soft law contract.

Soft law governs the domestic world before hard law enters into it. What one spouse owes another, what parents owe children, what siblings and in laws owe one another, all of this is specified in the first place by soft law. But justice is blind to soft law. Hard law has no good way of reckoning with or measuring the injuries that come to family members through the violation of soft law, and no way of acknowledging soft law violation as a prime mover of domestic unrest. This is strange because the social science here is relatively robust.

Soft law is not immutable. It is shaped and reshaped by changes in popular opinion and contemporary culture. Ours is a culture that endures and indeed requires a constant “flow through” of new belief and practice. This is the way we manage to adjust to the cataclysmic changes forced upon us by changes in technology, the economy, and indeed the beliefs and practices themselves. The force of this change is so great that the culture of the 1980s seems remote from that of the 2000s, and the world of 1960, as portrayed in the TV show Mad Men, now impossibly exotic.

What is this orderly world on which soft law rests? Let’s call it a “soft system.” It has some of the properties of order. It is systematic, governed by diffusion effects and the dynamics that govern all complex adaptive systems. It is thanks to this soft system that we all change but that we all move in roughly the same direction. But still and all, the soft system still soft. Its processes are not completely rule bound. The outcomes are not completely clear. This is to say that the soft system is like soft law. It represents a messy, assumed, consensus that endows us with order through no explicit intervention or governance on our part.

Here too justice is blind. A soft system may govern the social world but the court looks the other way. And let’s not kid ourselves. Virtually everything in the court room is governed by this soft system, the superficial things like clothing styles and the more substantial things that have to do with what we think “rights” are, what “punishment” should be, how “justice” works. If this seems extreme, perhaps someone can tell me what happened to that now idea of “rehabilitation.” This was once a very fixture of our system of justice. By invisible consensus, it has disappeared from view, dispatched on the ice flows of public opinion, and recently too.

I don’t have the benefit of legal training, so it’s hard to tell whether these remarks are useful. But it seems to me odd that the hard law should be so little interested in soft law and soft system. We treat them as ships passing, but they are often in collision. Lawyers and jurists are perhaps a little like economists in this respect. They do not acknowledge and sometimes appear not even to see the larger social and cultural context in which the law is applied. If every law firm and law school had a Chief Culture Officer, we could change this in very short order.

Goffman, Erving. 1959. The Presentation of Self in Everyday Life. Anchor.
McCracken, Grant. 2009. Chief Culture Officer. New York: Basic Books.
Ferguson, Charles. 1976. The Structure and Use of Politeness Formulas. Language in Society. Vol. 5, Issue 2, August, pp. 137-151.
Fox, Kate. 2008. Watching the English: The Hidden Rules of English Behaviour. Nicholas Brealey Publishing.


BRIGHT IDEAS: John Temple on The Last Lawyer

Last Lawyer 2John Temple is Associate Dean of the P.I. Reed School of Journalism. His new book, The Last Lawyer, follows Ken Rose as he handles a post-conviction death penalty case. Whether one is for or against the death penalty, the book reveals how any system with capital punishment must face the problems of inadequate defense, mental retardation, mental illness, and sketchy witness testimony. John is not, however, a lawyer. His post today explains what drew him to this story and the difficult choices the story made him face as writer. For those interested in chronicling major social issues and for those who want to know the details of what it takes to do capital defense work, this book should be a great place to start.


By John Temple, author of The Last Lawyer

Unlike many authors who set out to write about hot-button issues, I was not motivated by ideology, but rather by a journalistic impulse — what Tom Wolfe calls the desire to chronicle “the way we live now.”

About 10 years ago, I saw a news brief about a team of lawyers who were flying in to Texas to defend a man who faced a looming execution date. It had never occurred to me that there were lawyers who specialized in last-minute capital appeals. That was a book, I thought. It would have the scope, the ticking-clock narrative, the characters with goals.

In 2004, I began looking for the right setting. I settled on North Carolina. It had a large death row, an organization exclusively devoted to fighting death sentences (the Center for Death Penalty Litigation), and it was within driving distance of my home in West Virginia. I contacted Ken Rose, the executive director of the CDPL, and explained my plan. He helped me arrange a visit to Durham to meet some attorneys who might have a case I could follow. He was clear that he thought the attorney should be someone other than himself.

In May of that year, I drove to Durham and spent the first couple of days interviewing CDPL attorneys, including Ken. None of the other lawyers were litigating cases that seemed quite right for my idea. Meanwhile, I was growing more interested in Ken, a self-effacing, driven man who’d been doing the work for more than a quarter-century. But Ken brushed aside my queries about his own cases.

At Ken’s request, I had carried along a manuscript of my then-unpublished first book, Deadhouse: Life in a Coroner’s Office. I was nervous to give it to him because it was a book about courts and homicide cases, Ken’s area of expertise. I worried he’d find something offensive – or worse, incorrect – and cut off my access.

But he read the manuscript in one night, and the next day, he gave it back to me without much comment. Whatever he’d thought, he had apparently come to a conclusion. He sat back on his couch and said the words I’d been hoping to hear: “You know, I have a case you might be interested in.”

“Tell me about it,” I said.

That was the beginning of my four-and-a-half year journey into the world of capital post-conviction law. But just because Ken was willing to share the story of one of his cases for me didn’t mean that I had gained full access to the case. For the next several months, Ken and his co-counsel and I negotiated an agreement that would give me the detail I needed to write a full and honest account of the case.

We eventually struck a deal. They agreed to give me full access to their case files and allow me to shadow them during strategy sessions and witness interviews.
In exchange, I made several concessions. I agreed not to publish the book until the case had reached some sort of conclusion, whether that meant a reduced sentence, exoneration, or execution. This was difficult because capital post-conviction cases can drag on for decades, and I had not yet earned tenure. It was a gamble, but one I was willing to take, because I simply didn’t want to write a book about an unfinished case.

I also agreed to let the CDPL lawyers read the book before I published it, though I would retain full editorial control. As a former newspaper reporter, I’d been trained to never allow sources to read your work before publication. However, I didn’t think the rationale behind this journalistic tradition applied to a book of this scope. Why not give sources the chance to correct factual errors, I thought, especially when I had retained editorial control on a story that was years in the making? It wasn’t a difficult concession.

After all the years of work, the book is now finished, and we all adhered to our agreement. When I sent Ken Rose the completed manuscript last year, I was very concerned about his reaction. Some parts of the book paint him in an unflattering light, and he’s not a guy who loves the limelight in the first place.

Though he was initially concerned about a few aspects, and clearly uncomfortable in the role of the book’s protagonist, Ken has handled the book’s publication in the most gracious manner. He recently participated in a panel discussion with me at West Virginia University, and has invited me to North Carolina to speak together.

It’s impossible to sum up what I learned over this five-year journey, but from a writer’s standpoint, I’ll offer what I deem to be the biggest lessons. First and above all else, choose a subject that fuels your passion, because when things break down or seem like they might not work out (as was the case for an almost 18-month span during my reporting), you’ll need that inner strength to continue. Second, don’t be afraid to jump outside of your comfort zone. It felt awkward and “unjournalistic” to allow the characters in my book to read the manuscript before publication, but the product was much more accurate as a result. Finally, a little luck can never hurt — and a happy ending is the icing on the cake.


BRIGHT IDEAS: Laura DeNardis on Protocol Politics

Laura DeNardisdenardis_laura has written a superb new book, Protocol Politics (MIT Press, 2009).  Laura, the Executive Director of the Yale Information Society Project, is a scholar of Internet governance issues who teaches Access to Knowledge at Yale Law School.  Protocol Politics tackles the political, economic, and technological ramifications of our vanishing supply of Internet protocol addresses and the selection and adoption of a new Internet protocol.  The book helps us see why this issue has a profound impact on Internet civil liberties, US military objectives, globalization, institutional power struggles, and democratic freedoms.  It offers recommendations for Internet standards governance, based not only on technical concerns, but also on principles of openness and transparency, and examines the global implications of looming Internet address scarcity versus the slow deployment of the new protocol designed to solve this problem.  I asked Laura about her book; her answers are below:

WHY DID YOU WRITE THIS BOOK?9780262042574-medium

DeNardis:  Internet technical protocols, the ‘agreed upon’ blueprints that enable interoperability among technologies, are largely invisible to Internet users but structure how we access information, influence which corporations will gain market dominance, and make direct decisions about our Internet freedoms.  I wrote this book for four reasons.  First, I wanted to bring this largely hidden world of Internet standards setting and protocol design to a wider audience and explain why citizens should be engaged in protocol debates. Second, I used the new Internet Protocol – IPv6 – as the primary case study because it is at the center of a very real global dilemma.  The reserve of Internet addresses necessary for every connection to the Internet is nearly depleted and the migration to the new protocol designed to solve this problem has barely begun.  The progression of Internet address depletion, as well as more than a decade of unrealized promises about the new protocol, is one of the most fascinating stories in the history of the Internet. Third, I wanted to present a framework for Internet governance that moves beyond the usual ICANN issues to include a different set of questions about standardization, communication rights, critical Internet resources, and intellectual property.  Finally, I wanted to present a framework for openness and transparency in technical standardization that has the technical rationale of maximizing interoperability, the economic rationale of encouraging competition, and the political goal of maximizing the legitimacy of private standards-setting organizations to make decisions that establish public policy in areas such as individual civil liberties, democratic participation, and user choice. Read More


BRIGHT IDEAS: Bonnie Honig on Emergency Politics: Paradox, Law, Democracy

Honig CoverToday’s Bright Idea comes from Professor Bonnie Honig. Professor Honig, also Senior Research Fellow at the American Bar Foundation and appointed (courtesy) at Northwestern Law School, is Sarah Rebecca Roland Professor of Political Science. Professor Honig’s work has appeared in the American Political Science Review, Political Theory, Strategies, Boston Review, Social Text, Social Research, and Triquarterly Review. She has written several books including, Political Theory and the Displacement of Politics (Cornell, 1993; awarded 1994 Foundations Best First Book Prize), Democracy and the Foreigner (Princeton, 2001), and Emergency Politics: Paradox, Law, Democracy (Princeton, 2009) which is the topic of today’s post. In short, Professor Honig challenges us to think about the interplay between democracy and emergency politics. Princeton has made the introduction available here as a pdf. In short, Professor’s investigation grew to encompass questions regarding “immigration politics, new rights claims, contemporary food politics and the infrastructure of consumption, and the limits of law during the Red Scare of the early twentieth century.” She drew on Moses Mendelssohn, Franz Rosenzweig, and other Jewish thinkers to provide a way for us to think about these problems. Here is Professor Honig sharing some of her ideas about emergency politics and how the book evolved.

Emergency Politics: Paradox, Law, Democracy

Emergencies isolate people and make them afraid. Democracy, more than law, postulates courage and collectivity. More to the point, it is not as if we can separate law and democracy, as critics of majoritarianism like to do. What is done in the name of law or its suspension also depends upon the (de)mobilization of democratic energies.

My aim in writing Emergency Politics was to give a more democratic rather than liberal perspective on emergency, to acknowledge the importance of law to the emergency situation (as a resource in combating political violence, as a protector of rights in times of political difficulty) but also to point out that the turn to law, while necessary, is not adequate to respond to the demands of emergency politics.

One of the framing ideas of the emergency politics literature comes from Carl Schmitt, the German legal theorist who became a Nazi jurist. Schmitt talked about emergency situations as a state of exception. This is not a lawless situation, he argued, but rather a paradoxical situation of lawful lawlessness, one in which ordinary law is lawfully suspended. Yet, as Clinton Rossiter points out in his book, Constitutional Dictatorship, most major democracies have such emergency provisions.

Emergencies are temporary by their nature, Schmitt argued, and the suspension of ordinary law will eventually end, also lawfully, and normal law restored. But the decisionistic structure of sovereignty is always there, in the shadows. One of the things centrally important to Schmitt is how in the extraordinary moment of emergency the real architecture of sovereignty becomes visible and the decision (sovereign discretion), always a factor in political life, is laid bare.

As I investigated Schmitt’s ideas, I noticed that Schmitt analogized his idea of the legal suspension of law to theology’s miracle. Miracle, he said, is the suspension of nature’s normal order by the god who created it. In miracle, god’s decisionistic power is revealed for all to see. Miracle interrupts the ordinary causal world but does not destroy it. The normal pattern of nature returns in miracle’s aftermath. While this is indeed a familiar view of miracle, it is not the only one. Other contending views of miracle have put pressure on this one. One contender comes from within the Judaic tradition. It was developed by Franz Rosenzweig, who, it turns out, was writing at the same time as Schmitt.

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BRIGHT IDEAS: Victor Hansen and Lawrence Friedman on The Case for Congress: Separation of Powers and the War on Terror

Case_for_Congress2Today’s Brights Ideas piece comes from Professors Victor Hansen and Lawrence Friedman who both teach atNew England Law, Boston. The book, The Case for Congress: Separation of Powers and the War on Terror (Ashgate), shows how Congress still has vital role to play in the way our country conducts war. In addition, for all of you wondering about the gestation of a book, let alone one where two authors must work together, the authors share the story of the beginnings of the book and some insights about collaboration and the legal academy.



The Case for Congress: Separation of Powers and the War on Terror


Despite the focus on Presidential power and its expansion since September 11, one branch of government has not received enough attention: Congress. Though the office of the President has over time accrued more power in the area of national security than the textual delegation in Article II would suggest, Congress still has an important role to play. At this writing, President Obama continues to pursue some of the same strategies adopted by his predecessor, and so it seems our representatives in Congress can never be reminded enough that they have the constitutional authority both to authorize and supervise many aspects of the defense of the nation against the threat posed by terrorism. This perspective drives our new book, The Case for Congress: Separation of Powers and the War on Terror.

Now, several years and a new Presidential administration after we began discussing the role of Congress in national security matters, we remain convinced that Congressional involvement should be encouraged.

The benefits of such Congressional action are many. Not least is the value that inheres in Congress, through enabling legislation and the apparatus of the political process, serving as a check on a President’s tyrannical impulses. In the end, as the framers imagined, Congressional involvement brings to the table a measure of accountability that exclusively executive decision making often lacks.


We started writing The Case for Congress: Separation of Powers and the War on Terror without even realizing it. As we note in the book’s preface, the project began as a discussion over lunch in late 2005 about various aspects of the war in Iraq and the war on terror. Each of us knew Americans on the ground in Iraq, and neither of us was impressed with the coverage of the war on terror in the popular media. In talking about the legality of the Bush administration’s moves in each of these conflicts, moreover, we thought about how terribly partisan the analysis of policy decisions had become, and we thought we could make a contribution to the debate by focusing, in a neutral way, on an institutional actor that seemed to be neglected: the United States Congress.

These discussions led to a series of essays published in the on-line journal Jurist, as well as to a larger project, a law review article about the Bush administration’s proposal to use secret evidence in the trials of terrorism detainees. That article was published in a symposium issue of the Roger Williams University Law Review on military justice in 2007.

Somewhere along the way, our work attracted the attention of an editor at the Vermont office of Ashgate Publishing, based in England. He contacted each of us separately to ask whether we had any interest in pulling together into a book some of the ideas we’d been toying with for a couple of years. This was in the spring of 2008. At the time, neither of us had written a book, or had much idea what it would take to turn one law review article and a handful of short essays into a longer work focusing on the issue to which we kept returning: the importance of Congressional involvement in foreign affairs and national security decisionmaking.

But once we decided we had more to say, we also discovered the writing was easy. In fact, working on the book became something of an attractive nuisance: each of us had other scholarly projects in process, as well as a full teaching load at New England School of Law, yet working on the book proved to be a welcome diversion from those responsibilities.

We learned something important in the process: It helps to collaborate. Collaboration is sometimes looked down upon in the legal academy, and for no good reason that we can discern. By collaborating on this project, we were able to get a manuscript to the publisher within months, rather than years, and see the book published in time for it (hopefully) to be relevant.


BRIGHT IDEAS: Susan Brewer on Why America Fights: Patriotism and War Propaganda from the Philippines to Iraq

Brewer book jacket3Today’s Bright Ideas post comes from Professor Susan Brewer. Professor Brewer teaches history at the University of Wisconsin-Stevens Point. She is the author of To Win the Peace: British Propaganda in the United States during World War II. Today she shares how she the ideas behind and how she came to write her latest book, Why America Fights: Patriotism and War Propaganda from the Philippines to Iraq. As someone who loves history and studies of the way media is used to shape agendas, this books looks like a winner. But I’ll let Professor Brewer explain more on that.



Why America Fights: Patriotism and War Propaganda from the Philippines to Iraq

Why America Fights explores the packaging and sale of war aims by the U.S. government to the American people over the past century. It analyzes propaganda in six wars—the Philippine War, World War I, World War II, the Korean War, the Vietnam War, and the Iraq War—intended to rally public support by showing Americans that they fight for democracy, freedom, security, and economic opportunity. Such messages from “to make the world safe for democracy” to “protect the American way of life,” assure the public that their ideals and interests are one and the same.

I had the idea for this project while I was working on my first book, To Win the Peace: British Propaganda in the United States during World War II (1997). It examines the British government’s careful efforts to construct a lasting “special relationship” with the United States when it recognized that only its wealthy ally had the power to help the depleted British Empire through postwar recovery. Propagandists analyzed U.S. political culture to determine the best way to win American hearts and minds. For example, to overcome what they called the “ancient grudge” held by Americans against the British Empire, British officials sought to link the empire with America’s epic frontier past so popular in films and novels. They called their theme “white men in tough places.” Although officials acknowledged the racist nature of such a message, they thought it would encourage white Americans to identify with the colonizer rather than the colonized. Besides they knew that most African Americans were not allowed to vote. Intrigued by the way in which British policymakers defined their interests and constructed appealing messages to promote them to the American public, I wondered about U.S. government efforts to do the same.

My research also was influenced by the George H. W. Bush administration’s presentation of the Persian Gulf War of 1991. I observed how the administration used explicit and implicit references to past wars to justify the current one: the comparison of Iraqi leader Saddam Hussein to Adolf Hitler; the story of the invading Iraqi troops pulling the plugs on incubators holding Kuwaiti babies, later discredited, which recalled World War I propaganda showing the invading Germans bayoneting the babies of Belgium, also later discredited; and the steady assurance that the Persian Gulf War would not be another Vietnam. These themes, I thought, had a lot to do with popular history and culture and not so much to do with U.S. foreign policy in the Middle East. I wanted to investigate just what government officials have chosen to tell and not to tell when convincing the American people to support war.

To see how various administrations defined their war aims and then how they decided to present them to the public, I conducted research at the National Archives, the Library of Congress, and the presidential libraries. I analyzed the resulting messages as delivered through speeches, posters, movies, radio shows, television appearances, magazine ads, and news stories. What I found was that to promote war aims dedicated to defeating the enemy and expanding U.S. power, propaganda portrayed Americans as liberators, protecting civilization and advancing progress. “To make the world a decent place to live in,” declared a World War I poster. In this case, as in others, the world failed to live up to its projected image, leaving Americans feeling disillusioned about their intervention in the Great War. One of the goals of official propaganda in World War II would be to restore public confidence in America’s global mission and build a consensus in favor of ongoing U.S. commitments overseas.

From war to war, propaganda revived the portrayal of the United States as a just and benevolent nation using its power to create a better world. In doing so, it typically focused attention on American cultural beliefs rather than global realities, presenting idealized versions of the United States and its allies while dehumanizing the enemy. It sought to win over the American people by appealing to what they wanted to believe about themselves. I hope that readers of Why America Fights will consider why these official constructions of wartime national identity remain so compelling.


Bright Ideas: Dan Markel, Jennifer M. Collins and Ethan J. Leib on Privilege or Punish: Criminal Justice and the Challenge of Family Ties

privilege-or-punishToday’s Bright Idea comes from Dan Markel, Jennifer M. Collins, and Ethan J. Leib. Dan is the D’Alemberte Professor of Law at Florida State University College of Law and of course blogs at Prawfs. Jennifer is an associate professor of law at Wake Forest University School of Law. Ethan is an associate professor of law at U.C. Hastings College of Law. All three have impressive track records as scholars with articles appearing in the Yale Law Journal, Northwestern University Law Review, Iowa Law Review, Emory Law Journal, and many other excellent publications among them. With such an impressive group behind Privilege or Punish: Criminal Justice and the Challenge of Family Ties, I am quite pleased to present Dan Markel, Jennifer M. Collins, and Ethan J. Leib as they share the shape of their ambitious book. In addition, the essay explains how the project began and evolved. Both parts offer insights well worth the read.


First, we want to thank Deven and the Co-Op crew for the chance to share some thoughts about our book and the story behind its writing. Privilege or Punish: Criminal Justice and the Challenge of Family Ties is a book that tries to answer two basic but under-appreciated questions. First, how does the American criminal justice system (writ large) address a defendant’s family status? And, second, how should a defendant’s family status be recognized, if at all, in a criminal justice system situated within a liberal democracy committed to egalitarian principles of non-discrimination?

The Shape of the Book

The descriptive part of the project originally began as a chance to ruminate upon contemporary “Antigone” situations where one’s loyalties to the state stand in tension with one’s loyalties to family members. Think of David Kaczynski, the Unabomber’s brother, or Bernie Madoff’s sons—they all called in the authorities to arrest their family member. But we soon realized the Antigone problem was only one of many sites where the state’s criminal apparatus and family intersected.

Consequently, we sought to survey the various spaces within the criminal justice system in which defendants are either benefited or burdened by virtue of their family status, ties, and/or responsibilities. To give you a sense of the panoply of benefits and burdens, consider just a few: most states give spouses a right to refuse to testify against their spouse in a criminal proceeding and some even permit a spouse to block the testimony of a spouse who is willing to testify; almost twenty states give exemptions or substantial punishment discounts to those harboring a fugitive when that fugitive was a close family member; many states permit or require sentencing discounts to offenders who are parents with care-giving obligations; most states impose duties to rescue, supervise and support children and the breach of those duties renders one eligible for criminal sanction; most states have bigamy and incest laws that render conduct “criminal” that would not otherwise be unlawful but for the family status of the defendant. These are just some of the various “family ties benefits” and “family ties burdens” in our criminal justice system.

Naturally, we weren’t satisfied with merely cataloguing these benefits and burdens. We also wondered how policymakers and courts *should* view these laws. And so we established a framework of analysis for these benefits and burdens, one that was inspired by, but not identical to, the framework used to scrutinize suspect classifications in constitutional law. To sum up our various conclusions crudely, we basically claim that the state should exercise substantial caution and indeed skepticism to most attempts to distribute these benefits or burdens based on one’s family status. This is a controversial stance, but we concluded that in many circumstances there are simply too many costs to the criminal justice system when it gives special treatment based on one’s family ties or responsibilities.

Moreover, even when the criminal justice system does not suffer in terms of its ability to reduce crime and to impose accurate and adequate punishment, the signals of such family ties burdens and benefits are often expressively denigrating the lives of those who don’t live by the rules of a heterosexist and often repro-normative conception of family life. Our view is that a criminal justice system in a liberal democracy has to be especially careful about sending these messages of denigration and inequality through its most awesome instruments of power, coercion, and condemnation.

By offering both our descriptive and normative claims, we hope to be doing something different and important. Although in recent years scholars have been successful in analyzing the indirect effects of certain criminal justice policies and practices on the family, few have recognized the variety of laws (whether statutory or common law-based) expressly drawn to privilege or disadvantage persons based on family status alone. It is critically necessary to pause and think through how and why our laws intentionally target one’s family status and how the underlying goals of such a choice might better be served in some cases. This book begins that vitally important conversation with an array of innovative policy recommendations that we hope will be of interest to anyone seeking the improvement of our criminal justice system.

Below the fold, we talk a little about how the evolution of our book from idea to reality.

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BRIGHT IDEAS: David Sugden on Gray Markets

Gray_Markets2.JPGToday’s Bright Idea comes from David Sudgen. David is a partner at Call, Jensen & Ferrell, where he specializes in intellectual property, trade secret, copyright, technology, business torts, and brand protection. His book, Gray Markets, (Oxford University Press) goes into an area that trademark folks should, but may not, know about: the way in which globalization has affected the use of trademarks and the enforcement of trademark rights. As the description puts it “From cars to cigarettes to pianos to pharmaceuticals, products that were manufactured to be sold in other countries are finding their way back to the United States where they are sold through unauthorized and illegal channels. This unauthorized economy – the ‘gray market’ – is growing in size and scope at an alarming rate: information technology manufacturers alone have estimated losses at $40 billion in annual sales. In Gray Markets: Prevention, Detection, and Litigation, David Sugden provides the first comprehensive analysis of the gray market as well as a blueprint for attorneys and businesses to prevent, detect, and litigate gray market cases.” As someone who once enforced trademarks and now questions the trademark system, David’s book intrigues me as it provides valuables examples of experiences, problems, and how trademark holders react to the changing business landscape.

So here is David Sugden explaining how he came to write a book about the world of Gray Markets.


Relatively early in my career, I did a great deal of work enforcing trademarks and copyrights against those in the business of stealing or knocking off branded goods. Among the challenges in these cases is catching the wrongdoers in the act. Because companies in the business of faking goods are also in the business of secrecy, we had to employ the tools of litigation that would allow us to surprise defendants and catch them red-handed.

In civil litigation, the usual practice requires serving a defendant with a summons and complaint and affording it between twenty and thirty days to respond. If the defendant is dishonorable, it can take advantage of this window by doing everything possible to cover its tracks; documents will be shredded, electronic evidence will be scrubbed, and any other indicia of wrongdoing will disappear. To prevent the destruction of such evidence in counterfeit cases, we would often request the Court to grant us the ability to conduct a surprise search and seizure of the defendant’s premises.

To obtain such an order, we would file the complaint under seal to prevent public disclosure of its contents. We would simultaneously submit a motion that outlines – with evidence – why the defendant is liable and why the defendant could not be trusted to preserve evidence of its culpability. Once satisfied with our evidentiary showing, the court would issue an order allowing us, with the assistance of law enforcement and forensic computing experts, to execute a surprise search and seizure of all counterfeits, knock-offs, stolen goods, and supporting documentation. Over the years, I was involved in such seizures all over the country; California, New Jersey, Florida, Texas, Oklahoma, and Georgia.

When we would execute these orders, I was often surprised to see how often counterfeit goods were comingled with genuine branded goods. Even though these businesses had no right to sell genuine goods, their inventories would often contain large quantities of genuine goods alongside large quantities of inferior imitations. In fact, the defendants would often argue that they were not guilty of selling counterfeit goods – they would argue, albeit falsely, that they were simply involved in the lawful secondary (i.e., gray) market.

This gray market vexes brand owners because goods intended for overseas distribution are finding their way back to the United States through unauthorized sales channels. Authorized distributors and resellers are similarly annoyed because they must compete against unauthorized resellers selling the same products at lower prices. And, of course, consumers can suffer if the gray market goods are comingled with counterfeit products or if the genuine product is otherwise compromised by inferior packaging, transporting, or servicing.

As I examined the strategies and existing laws, I thought a great deal about what brand owners could do to prevent the gray marketing of their products from occurring in the first place. Beyond courtroom strategies, I considered actions to prevent brand abuse and avoid the time and expense of civil or criminal prosecution. I also observed an absence of any treatise or other authority that had synthesized the existing body of gray market law. It was these factors that lead me to the idea of writing Gray Markets: Prevention, Detection & Litigation.

In Gray Markets, I introduce a variety of strategies that brand owners can use prevent genuine goods from unauthorized distribution channels. From educational and contractual methods that communicate the importance of gray market abstinence, to on-site security and modern tracking technologies, and to the use of private investigators and even “dumpster dives,” the book then offers specific methods to detect the existence of brand abuse. And, finally, the book provides a summary of the legal theories and authorities that are relevant in gray market litigation.


BRIGHT IDEA: Julia Angwin on Stealing MySpace: The Battle to Control the Most Popular Website in America

stealing my space.JPGAs some of you know, John Scalzi is a good friend of mine. His Big Idea series inspired our Bright Ideas series here at Concurring Opinions (John was gracious enough to let me ping off his series). John’s series usually focuses on science fiction, but a recent post highlighted Julia Angwin‘s new book, Stealing MySpace: The Battle to Control the Most Popular Website in America. As John notes, Julia is the Senior Technoloy Editor of, the Wall Street Journal’s web site.

Julia’s impressive experience makes her well positioned to offer insights about MySpace. She has covered technology for the San Francisco Chronicle in 1996 “including Microsoft’s antitrust woes”; was named “Outstanding Young Journalist of the Year” by the Northern California chapter of the Society of Professional Journalists; and won a Knight-Bagehot fellowship in journalism for studies at Columbia Business School. She obtained an MBA at Columbia in 2000 and then started her career with The Wall Street Journal in New York. As her bio explains she “cover[ed] technology and the dot-com boom from an East Coast perspective. The rise and fall of the AOL Time Warner merger was an important part of [her] beat. In 2003, [she] was on a team of reporters at The Wall Street Journal that was awarded the Pulitzer Prize in Explanatory Reporting for coverage of corporate corruption.”

I liked the post and luckily Julia and John said they did not mind me reposting the entire post. So here’s Julia.


As a nonfiction writer, I don’t get to choose the ‘big idea’ in my work. All the ideas – large and small – arise naturally from the facts I uncover. My job is to take the facts, stare at them hard and extract the ideas from them.

When I began writing Stealing MySpace, I thought that the ‘big idea’ that would emerge would be about the remix generation – the kids who were using MySpace to reshape their digital worlds. After all, weren’t they changing the world with their behavior?

But, in fact, the big idea that arose from my reporting was altogether different. It was this: what does it take to be a successful entrepreneur?

Early in my investigation, I discovered that the founders of MySpace were scammers. Before they started the social-networking site, they sent spam, distributed spyware, and peddled spy cameras you could hide in your shoe and e-books touting “how to grow taller” and “how to hypnotize people.” MySpace was just an idea they copied from a popular Web site at the time, Friendster.

MySpace’s parent company, Intermix, wasn’t much better. It made most of its money selling subscription wrinkle cream and diet pills online, had a spyware business of its own, and had a thriving animated greeting card business best known for its fart and poopy diaper jokes.

In the book, the venture capitalist who backed Intermix (and was initially reluctant to support MySpace) David Carlick says why he’s not worried about the unsavory parts of Intermix. “Marketing has always been on the scary edge of ethical.”

This was a vastly different story than the canonical tech startup tale. This oft-told narrative stars a Bill Gates genius-type founder dropping out of Harvard to work on his technological breakthrough in a garage somewhere.

This was the story that I absorbed into my pores as a kid growing up in Silicon Valley, and then as a reporter covering the industry.

Meeting this new type of success story I wondered: were the MySpace founders just lucky? Or was their hucksterism part of what it takes to succeed?

One solution presented itself to me: Web technology had finally become easy to use. No longer were Web companies going to be run by engineers; now they could be run by marketers, too.

But then, slowly, it dawned on me that the Silicon Valley tale I’d grown up on was a bit of a myth. Hadn’t these tech companies really been run by marketers all along? Bill Gates, although he was a brilliant programmer, was an even more brilliant marketer. Ditto for Steve Jobs, whose marketing prowess is such that he is considered a “reality distortion field.”

And thus I stumbled onto my big idea: The greatest entrepreneurs are hucksters who have simply crossed the line into brilliance.


Stealing MySpace: Amazon | Barnes & Noble | Powell’s

Read an excerpt of Stealing MySpace (pdf link). Visit Julia Angwin’s blog. Follow Julia Angwin on Twitter.


Economics and Entrepreneurial Finance

(I seem to have the blogging bug today, so I’ll take the advice on my last post and blog shamelessly about my new article!)

Economic theory holds that money is fungible: any unit of money is an adequate substitute for another. But my research on entrepreneurial finance, which analyzes and compares different sources of financial capital available to high-tech start-ups, suggests that this isn’t always the case. In my new article Financing the Next Silicon Valley, I show that differences in financing options may explain why we don’t have more Silicon Valley-like regions in the U.S. With our other economic engines (manufacturing, financial services) in rapid decline, a competitive economic strategy for our nation must include more tech-driven innovation. Entrepreneurial finance is a huge part of that (after all, what do start-ups lack: money!), and not all money is created equal.

My article compares three major financing sources for start-ups: private venture capital, state-sponsored venture capital, and angel investor groups. Private VC is smart money – the dollars also come with the VC’s expertise on start-up development and networking benefits. (Case in point: eBay went with the Silicon Valley VC Benchmark Capital primarily for the VC’s connections, which led to Meg Whitman taking on the CEO position.) But on the downside, private VC is heavily concentrated in existing tech regions like Silicon Valley, and also not available to the early-stage start-ups that need it most. In step the states, which set up their own VC funds with taxpayer dollars to try and fill the financing void for their neglected, home-grown start-ups. But the states, without any expertise in this area, just muck it up with their inability to pick the best start-ups ex ante or help them develop ex post. A new solution, the angel investor group, offers more hope for the future. Like private VC, angel groups are private actors who offer smart money; like state VC, that money is spread out to more regions and available to early-stage start-ups. It’s the best of both worlds.

In short, comparative entrepreneurial finance is important, both theoretically and practically. This sort of money, contrary to popular economic thinking, is not all fungible.