Putting in a Scare

October 31, 2015 Leave a comment

Halloween easily is among my least favorite holidays, but one good thing about this fall celebration is the fun musical possibilities the day offers. On this Halloween, the ninth since Bobby “Boris” Pickett entered the crypt for good, enjoy this timeless sonic spook and stay tuned for something soon on a scholastic scare that should shake the structural stanchions of the law school sphere.

Have a happy Halloween.

Categories: Uncategorized

Extreme Commitment

September 30, 2015 Leave a comment

But Ruth said, “Do not urge me to leave you or to return from following you. For where you go I will go, and where you lodge I will lodge. Your people shall be my people, and your God my God. Where you die I will die, and there will I be buried. May the Lord do so to me and more also if anything but death parts me from you.”

Ruth 1:16-17.

From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.

The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations. Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together. Confucius taught that marriage lies at the foundation of government. This wisdom was echoed centuries later and half a world away by Cicero, who wrote, “The first bond of society is marriage; next children; and then the family.”
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were.
Obergefell v. Hodges, 135 S. Ct. 2071 (2015) (citation omitted).
Categories: Uncategorized

It is Time to Believe Again

August 4, 2015 3 comments

Atticus told me to delete the adjectives and I’d have the facts.

Harper Lee, To Kill a Mockingbird (1960).

To write many words here would defeat the purpose of this post, which is to highlight the expansion in our popular discourse of both the use of extreme descriptors and their likely associated increasing application to mundane subjects. I am not a brilliant sociologist, so I am not sure exactly why everything is so incredibly incredible these days, although I suspect some of the concepts surrounding the notion of the attention economy (e.g., our increasingly-difficult-to-satisfy need for other people to pay attention to us) may be helpful in answering that question.

Whether this is happening, though, is a more readily answerable question, I think. While the NSA still isn’t releasing searchable transcripts for all of our written and verbal conversations, we do have some proxies. One is the Google Ngram viewer, which allows a variety of queries from the text of all of the books Google has scanned into its system. Another is Chronicle, which allows similar searches of the text of the New York Times. Some results from both sources:




These are incredible times indeed.

Please feel free to share the results of your own queries and suggest your own hypotheses or explanations in the comment section below.

Categories: Current, Discourse, Language

Things to Do in Alabama When You’re Dead

July 31, 2015 Leave a comment

If you die in the United States and your death is someone else’s fault, your surviving family members probably can recover legal damages (i.e., money) from the person who wrongfully caused your death. For example, Georgia allows a surviving spouse to recover “the full value of the life of the decedent, as shown by the evidence.” O.C.G.A. § 51-4-2(a). Placing a monetary value on a human life is a notion and, subsequently, a process fraught with moral, ethical, and practical obstacles, but, as democracy is to forms of government, we have come up with scant else in the way of providing a legal remedy to the surviving victims of a wrongful death. (Indeed, the availability of civil wrongful death actions offer these victims at least two things the criminal justice system does not provide: 1) the possibility of receiving tangible compensation– again, in the form of money– for the loss of their family member, and 2) the ability to control the legal action directly, as the plaintiff in the lawsuit, rather than as an observer to a criminal case controlled by a government prosecutor, who is not strictly bound by the wishes of surviving victims.)

If someone decides that you are going to make Alabama your eternal sweet home, though, things will go a bit differently for your surviving kin than they would had you died in neighboring Georgia, or, really, anywhere else in the country. Unlike those in other states, Alabama’s wrongful death statute does not afford survivors the right to recover based, in some measure, on the value of the life of the decedent; instead, Alabama courts have made clear that only punitive damages are available to wrongful death plaintiffs. Atkins v. Lee, 603 So.2d 937, 942-43 (Ala. 1992). Rather than compensating the surviving family of the deceased for the lost value of their deceased relative’s life, punitive damages are designed to punish the wrongdoer and thereby deter such wrongdoing in the future. Instead of the value of the life of the particular deceased individual, in Alabama, the sole measure of damages potentially available to wrongful death plaintiffs is based on the (jury’s view of the) reprehensibility of the wrongdoer’s action:

The amount of damages should be directly related to the amount of wrongdoing on the part of the defendant or defendants. In assessing damages, [the jury is] not to consider the monetary value of the life of the [deceased], for damages in this type of action are not recoverable to compensate the [family] of the deceased from a monetary standpoint on account of his death, nor to compensate the plaintiffs for any financial or pecuniary loss sustained by the family of the deceased on account of his death.

Id. at 943. As the Alabama Supreme Court explained, this restricted approach “rests upon the Divine concept that all human life is precious.” Id. at 942.


Alabama’s adoption of the legislative premise, whether “Divine” or otherwise, “that all human life is precious” is laudable, but the state’s unique wrongful death statute does not necessarily operate to advance the goal of valuing all human life equally. First, it simply does not treat each case identically, as different juries will award different amounts to wrongful-death plaintiffs in different cases (based upon the reprehensibility of the wrongdoer’s action). Second, by taking a purely punitive stance, the civil action essentially duplicates the purpose of any companion criminal action. Third, and related to the second point, it is not obvious that a strictly punitive civil arrangement operates as a greater deterrent on actions resulting in wrongful deaths than the more common, compensatory schemes of other states. Fourth, and related to the third point, the practical effect of this statute is that it is more difficult for wrongful-death plaintiffs to collect in Alabama than it would be if their deceased relative died in a different state, because they must convince a jury of the (degree of) wrongfulness of the defendant’s actions that caused the decedent’s death instead of focusing on the value of the life lost, which can be challenging when the act that caused the death looks more like mere negligence than intentional homicide. Indeed, and fifth, the result of Alabama’s approach is that the wrongdoer effectively is allowed to determine the value of the life lost; whatever label the state applies to the variety of damages recoverable, it seems likely that plaintiffs in Alabama will, for all practical purposes, view whatever they recover in a wrongful death action to represent a measure of what they wrongfully lost.

There is nothing necessarily wrong with enacting idealistic or aspirational legislation. Such pronouncements can serve practical purposes, and a document like the Declaration of Independence would seem to serve as a good example. Legislatures must take care, though, that the immediate practical effects do not serve to undermine, in actual effect, the principled stance taken. When that happens, one rightly wonders about the government’s true aim. Is Alabama’s goal to treat “all human life [as] precious,” or is it simply to make the legal landscape less hospitable to wrongful death plaintiffs and their attorneys?

Categories: Compassion, Incentives, Law, Legal

A More Perfect Union?

June 30, 2015 1 comment

Last week, the United States Supreme Court delivered its decision in Obergefell v. Hodges, 576 U.S. ___ (2015), deciding unequivocally that “same-sex couples may exercise the fundamental right to marry in all States” and “that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” (Slip op. at 28).

While there is no question as to the result of the case, the Court’s journey to reach that result, as helmed by Justice Anthony Kennedy, does leave for the future some stones unturned, as highlighted, in part, by the dissenting opinion of Chief Justice John Roberts. In particular, the majority’s reasoning does not go as far as it could have to secure the protection of same-sex rights.

For all of its quotable flourishes, the majority opinion is, in Roberts’ words, “difficult to follow,” at least as concerns its technical underpinnings. Obergefell, 576 U.S. at ___ (Roberts, C.J., dissenting) (slip op. at 23). While Kennedy purports to rely upon both the due process and equal protection clauses of the Constitution’s Fourteenth Amendment, his equal protection analysis departs in all material respects from the Court’s established jurisprudence. This light treatment of the equal protection analysis is not so much a problem for this case– I believe the outcome can stand on the due process basis alone– as it is for future cases. Obergefell leaves unanswered a question many see as critical to the course of development of homosexual rights: what degree of scrutiny must courts apply in reviewing regulations that discriminate based upon sexual orientation?

Under the Fourteenth Amendment, equal protection generally means that the government must treat everyone the same. Courts have recognized that there are some instances when it is appropriate for the government to treat people differently, however. Men and women, like the old and the young, are alike in many respects, but not all, and there may be areas in which it makes sense for a law to treat people differently on the basis of their gender or age. When reviewing a law that discriminates based upon race, though, courts hold the government to a much higher standard, on the notion that there are few legitimate reasons to differentiate people on the basis of their race. Through the development of equal protection law, the Court has established a hierarchy of sorts that informs courts as to the degree of scrutiny they should apply in their review of a law that discriminates along a given line. The Obergefell majority missed an opportunity to enunciate where in that hierarchy sexual orientation belongs and thus establish a precedent for future treatment of state laws that discriminate on the basis of sexual orientation.

The meat of the disagreement between Kennedy’s majority opinion and Roberts’ dissent involves the due process component of the decision, and it boils down to a disagreement over the essence of the basic question presented to the Court.

The Fourteenth Amendment’s due process clause prohibits states from “depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. Const. Am. XIV, s 1. As Roberts helpfully explains, “[t]his Court has interpreted the Due Process Clause to include a substantive component that protects certain liberty interests against state deprivation . . . . The theory is that some liberties are so rooted in the traditions and conscience of our people as to be ranked as fundamental, and therefore cannot be deprived without compelling justification.” Obergefell, 576 U.S. at ___ (Roberts, C.J., dissenting) (slip op. at 10) (citations and internal quotation marks omitted). The basic question under the due process analysis thus is whether the right asserted “rank[s] as fundamental.”

The disagreement between Kennedy and Roberts is not so much about the fundamentality of the right sought to be protected– although they do disagree along those lines– as about the very right itself. They do not even agree about what they are being asked to decide.

For Kennedy and the majority, the due process question is whether the right to marriage is fundamental. For Roberts, it is whether the right to same-sex marriage is fundamental. It is hardly a surprise that their paths would diverge when they began from different starting points. (Starting points they chose purposefully and with the bigger picture of the case in mind, to be certain.) For both, the analysis flows fairly naturally from there. Kennedy cites from ample historical and legal authorities to show that marriage is fundamental, while Roberts repeatedly points to the (many would say understandable) absence of the express inclusion same-sex couples in the historical and legal discourse surrounding marriage. While each seeks to score points against the other in the lengthy literature review portions of their opinions, the spread that matters is the one between the descriptions of the question before the Court.

While I appreciate Roberts’ structural critiques of the majority opinion, I find his framing of the question presented and the due process analysis that follows unsatisfying. On the other side, I agree that the result Kennedy reached is the correct one, but I think his reasoning could have been more robust.

One of the numerous subplots in this case involves whether and when courts should defer to legislatures, and while that subplot is less deserving of comment here because justices’ preferences for deference seem to shift with their preference for the legislative act at issue, Roberts makes a broader point with which I agree as a matter of fact: political results achieved through the democratic process (i.e., legislatures) are more robust than those achieved through litigation (i.e., the judiciary). See id. at 26-27. Roberts’ conclusion– that the Court should not intervene here because a result through the legislature would be more effective– does not follow, however. If the government has infringed upon a fundamental right, those injured as a result of that infringement should not have to wait for a remedy from their legislature, the very body that has acted to their detriment, simply because success there might prove more more immediately widely respected than a judicially ordered remedy.

Categories: Current, Law, Legal, Privatize

Book Review: Deal

May 27, 2015 Leave a comment

IMG_20150527_072144While the Grateful Dead last appeared on stage twenty years ago this summer, capping a thirty-year run that began in 1965, they remain popular and influential today. That remaining band members continue to perform and, to a lesser extent, record music certainly helps them remain relevant, as does their reverently cited influence by many other performers and music fans and their iconic merchandising. They are one of only five groups or individuals– along with Elvis, Bruce Springsteen, Neil Diamond, and Pearl Jam– to have a dedicated satellite radio channel.  All of the living core members– Mickey Hart, Bill Kreutzmann, Phil Lesh, and Bob Weir– will, along with part-time member Bruce Hornsby and other subsequently affiliated and related friends, acknowledge their fiftieth anniversary by reuniting this summer for three performances at Soldier Field, the site of the band’s final concert.

Based on the sheer volume of the band’s output and the size of its audience across a three-decade lifespan, the Grateful Dead certainly is among the most important musical outfits of the twentieth century. Without a conscious effort to do so (and without any real hit songs), but instead through the sheer force that accords and abides massive bodies, they permeated the broader culture, whether as a talisman of psychedelia or through their members’ appearances in educational videos screened in public middle schools, which was the vehicle for my first direct encounter with a Dead band member, drummer Hart, who was talking about the importance of caring for and preserving musical recordings and archives (I think).

Beyond Hart, I certainly was aware of Jerry Garcia at that time, having inherited from my father some of Garcia’s neckties, which confirmed that he (Garcia) had recently died by reading a tag attached to one of them. Later, Lesh and Weir came into view as I discovered record albums in the basement– first Dead Set and later Europe ’72— with centerfolds, sleeves, and inserts covered in photographs. The two-drummer lineup caught my eye, but it would be a while longer before I really got a read on Kreutzmann, perhaps because I already knew about his percussive counterpart Hart, perhaps because Kreutzmann’s appearance allowed him to fade into the background behind his more dynamically featured bandmates, and perhaps because I simply did not know much about drumming.

I eventually gained an appreciation for Kreutzmann’s playing when I heard him backing Garcia on Garcia’s 1972 solo album. The first track, “Deal,” has remained one of my favorite entries in the Garcia/Dead songbook largely because of Kreutzmann’s playing. (See, e.g., this stripped-down session outtake.) No one ever will confuse Kreutzmann for power drummers like Keith Moon or John Bonham or more dynamic drummers like Mitch Mitchell or Jon Fishman, but I enjoyed his ability to create complimentary feels that contributed to the grit and depth of the songs.

In light of the breadth and depth of interest in the Dead, it makes sense that people would want a fly-on-the-wall perspective of the band’s inner happenings in backstage dressing rooms, recording studios, tour buses, and hotels. A fly in that environment would be subject to the sounds, sights, and smells– or, say, vapors– of the psychedelic juggernaut. The fly would become intoxicated, is the suggestion, and while it might have fun as an immediate result, it might not be the best reporter of what it observed from its on-the-wall vantage point after the fact.

Of course, musical autobiographies come in various styles. Some, like Bob Dylan’s Chronicles, Volume I, trade precision, accuracy, and transparency for feeling, atmosphere, and emotion. Others, like Keith Richards’ Life, offer detailed clarity and genuine reflection seemingly in spite of hard living throughout most of the relevant periods.

I found myself revisiting my thoughts on and memories of Richards’ book as I finished reading Kreutzmann’s autobiography, which was published earlier this month. The drummer, it seems, combined the lifestyle of Richards with the shrouded delivery and reserved personality of Dylan. Kreutzmann is our fly on the wall, and the wall was papered with blotter paper.


The Rhythm Devils

In at least one respect, Kreutzmann is not shy: he likes acid and marijuana, and he combined plenty of both with intense periods of cocaine, alcohol, and heroin use during the life of the Dead. He generally demarcates the period from 1965-1995 by band album or tour; wife or girlfriend; residence occupied; and predominant narcotic of use or abuse. On the surface, Kreutzmann is not unlike anyone else in this regard– most people are likely to organize their memories and events in some way according to their professional, personal, and geographic relationships. The trouble for Kreutzmann, and for his book, though, is that his drug use either wiped out his memories of happenings in his life or rendered him unable to form them by participating in the moment. While coauthor Benjy Eisen promises to deliver something other than a mere band retrospective (“Lots of people can tell you about the Grateful Dead, and all of them will allow that there are many sides to that tale. This is Bill Kreutzmann’s side. This is Bill Kreutzmann’s story.”), the final product reads like a loose history of the Dead as told by someone who was there and not there. Bill Kreutzmann & Benjy Eisen, Deal: My Three Decades of Drumming, Dreams, and Drugs with the Grateful Dead 4 (St. Martin’s Press 2015).

While Kreutzmann– who has lead a variety of bands since the demise of the Grateful Dead and has both criticized and performed with his former bandmates during the last twenty years– has his wits about him today, he admits both that he does not remember a number of events significant enough to bear mention in a book like this or withdrew from them at the time due to some combination of drug use and what appears to be a generally reserved personality. While Eisen fills in the historical blanks with facts and statistics, readers are here for Kreutzmann’s observations and opinions. Too often, unfortunately, the inside scoop dips shallow.

The book does check some basic boxes. We learn which short-lived associates Kreutzmann considers true members of the band (yes for Hornsby, no for Vince Welnick and Tom Constanten); that he was mad when Hart made his initial return to the band after a personal leave of absence following Hart’s father’s theft from the band in his capacity as manager; which songwriting duo he preferred (Garcia-Hunter to Weir-Barlow, like most, possibly including Weir and John Perry Barlow); and that he often found better social company with the band’s roadies and staff than with his fellow musicians. Interesting trivia disclosed, though not here for the first time, includes that Kreutzmann’s grandfather was Clark Shaughnessy, who successfully coached various football teams at the collegiate and professional levels during a five-decade career, and that the Dead’s most commercially successful album, In the Dark, derived its title from a recording session conducted with the lights off in order to facilitate musical collaboration. One episode Kreutzmann did delve into at some length was the band’s 1978 performance in front of the Great Pyramids in Egypt, a visit that included Bedouins observing the concert happenings from afar and a midnight horse ride to a mysterious desert drum site.

What is missing, however, is any palatable expression of emotion with respect to Kreutzmann’s relationships with the people in his life. I have no reason to doubt that Kreutzmann loves his family members and friends, but that love largely does not translate to the pages of his book. His wives, partners, and children, like his bandmates and friends, appear as sometimes indiscriminate placeholders, simple trail markers along the book’s historical path, which is occasionally littered with throwaway quotations of song lyrics and the non-contextual talking points of a social liberal (e.g., marijuana good, genetically modified food bad).

Dead in Egypt

Dead in Egypt

Whether that is a reflection of a shy personality, Eisen’s failure to draw him out, or memories forgotten or never made, is impossible to say. But when he says a death saddened him (“darn it,” he almost always writes), the reader sometimes feels moved to ask, “really?”, not out of any doubt that the emotion is or was real, but because the expressed development of the relationship that naturally would precede a sensation and expression of sadness upon death is missing. Authors can tell or they can show, and, many times, there seems to be too little of the latter in this book. (On the other hand, perhaps I should have better appreciated these simple expressions of feelings, as other reviewers have, particularly in the case of Garcia, as telling contrasts to the bands well-noted excesses.)

Deal was an easy and enjoyable read. Although I have been listening to the Grateful Dead’s music, watching their movies an video footage, and reading magazine and internet articles about them for years, this was the first full-length book I have read by or about them. That it left me wanting more, in a sense, probably puts me in good company with the still-insatiable legion of Dead fans from Golden Gate Park to Giza.

Categories: Books, Music

“The prettiest place on Earth was Baltimore at night”

April 30, 2015 1 comment

Eight months later, another American city is undertaking physical confrontation of questions sometimes forcefully presented that, distilled, are fundamentally straightforward. Answering them has proven challenging, however.

The binary nature of many of the relationships and interactions at issue can lead to both clarity and confusion. This remains a time for asking questions (and seeking answers to those questions), rather than drawing conclusions:

It is an open American wound in one of our great American cities, and any attempt to conscribe some “lesson” to be learned, some overarching A-to-B “The More You Know” takeaway is an insult to the density of the situation both in Baltimore and the rest of the country. (The president’s response Tuesday on this was telling; he actually apologized for giving such a long answer.) Life is impossibly confounding, from every angle — the best you can do is just try to have empathy for every individual human being and admit that none of us can truly know anything. I can’t boil it down to any conceivable essence without losing its bottomless complexity, and neither can you. Distrust those who try. They are attempting to sell you something.

At the risk of losing this site’s sponsoring advertisers, I will press on just a little further in order to note the following:

Justice demands that participants in the riots are identified, arrested, and charged with whatever crimes they committed. Their unjustifiable violence endangered innocents, destroyed businesses, and harmed the economic future of largely black neighborhoods; they earned the frustrated contempt of Baltimore’s mayor and members of its clergy and strengthened the hand of the public-safety unions that are the biggest obstacles to vital policing reforms.

But a subset of Baltimore police officers has spent years engaged in lawbreaking every bit as flagrant as any teen jumping up and down on a squad car, however invisible it is to CNN. And their unpunished crimes have done more damage to Baltimore than Monday’s riots. Justice also requires that those cops be identified and charged, but few are demanding as much because their brutality mostly goes un-televised. Powerless folks are typically the only witnesses to their thuggery. For too long, the police have gotten away with assaults and even worse. The benefit of the doubt conferred by their uniforms is no longer defensible.

(Hyperlink added.)

There exists a binary relationship between the law and the citizenry as well. In practice, the making of the former ought to reflect the– perhaps aspirational– values of the latter. The enactment of laws enshrining principles of equality is no small feat, a fact to which older generations can attest. Yet, as the exceeding of boiling points in Ferguson and Baltimore within the past year reveal, the still greater challenge remains the actual living under and abiding by those governing principles of equality.

For some, recent events in Ferguson and Baltimore come as revelations that fundamental power, class, and race conflicts persist in this country. (For many others, of course, knowledge of the reality of these conflicts did not come recently.) These protests and related events do not represent a step backward, though, because their underlying drivers are not new, and because the effort to carry out enacted policies of equality and justice comes as a natural and subsequent step following the enactment of those policies.

At this time, however, many questions remain.


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