On day 2 of the Judge Ketanji Brown Jackson hearings, Senator Amy Klobuchar (D-Minn.) borrowed a joke from The Daily Show's Trevor Noah.
Klobuchar remarked on the significance of a woman taking a seat on the U.S. Supreme Court to attain a 5-4 gender balance for the first time. Of 115 confirmed justices in American history, Klobuchar counted, 110 have been men. Klobuchar said that she had "reminded" Trevor Noah on The Daily Show of similar statistics relative to service in the U.S. Senate: "Of the nearly 2,000 people who have served, only 58 have been women. And he responded that if a night club had numbers that bad, they'd shut it down." Here's the 38-second clip:
It was Noah who actually quoted the Senate statistic from a book, Nevertheless, We Persisted(2018), an anthology for which Klobuchar wrote a foreword and which she touted at the time. Noah followed up, "I've been to gay clubs that have better ratios of men to women." Klobuchar took the occasion in 2018 to speak against the Brett Kavanaugh nomination, pending at the time. She put the appearance on Facebook.
Klobuchar appeared on The Daily Show also in 2017 and in 2019, the latter while running for President. But none of those appearances marks the funniest intersection of Klobuchar and Noah in popular culture. That honor goes to a 2019 tweet by Noah in which he lampooned Klobuchar for overusing a joke on the campaign trail.
Senators' interrogations of Jackson on Tuesday and Wednesday this week were at times cringeworthy, to use my wife's word. In particular, the questioning by Senators Ted Cruz (R-Tex.) and Josh Hawley (R-Mo.) were difficult to endure; even National Review Senior Fellow Andrew C. McCarthy, who opposes Jackson's appointment on other grounds, described Hawley's attack as "meritless." The affair rubs in for me David Brooks's recent lament in The Atlanticon the divide between today's rabid right and the meritorious social value of genuine conservatism.
Both Stephen Colbert and Trevor Noah are off this week, so between the stresses of a contentious Senate hearing and the ongoing war in Ukraine, I am sorely missing my daily doses of escapist levity. Fortunately, The Daily Show's Desi Lydic deposited a dose of satire on the web for us; don't miss it.
On Wednesday, Paramount's late-night television kindly obliged my classroom teaching with two legal references, one fit for my Wednesday torts class, and another for my Thursday comparative law class.
First, a gift for Torts II students, from Stephen Colbert: In a monolog on the retirement of Justice Stephen Breyer, Colbert on The Late Show with Stephen Colbertplayed on the word "torts" to joke about Justice Breyer's stated intention to refine his cooking skills in retirement. "From Torts to Tarts," Colbert said (cue 2:31), suggesting a name and mock cover for a forthcoming Supreme Cookbook.
The U.S. Supreme Court of course does not often deal directly with
torts, or civil wrongs, which are mostly matters of state law in the
United States. It's often a source of misunderstanding for foreign
lawyers and new American law students who must learn that SCOTUS is not "the highest court in the land" (even besides that one) when it comes to torts.
That said, a good deal of tort law finds its way to the federal high court on all kinds of paths. Federal courts routinely apply state law in multi-district litigation, including mass tort claims, and in matters involving both federal and state claims. State tort claims can become mixed with federal questions in problems of constitutional defenses and preemption. Federal "common law" persists in places of original federal jurisdiction, as in maritime matters. And the trial of civil wrongs recognized in federal law, such as civil rights, can borrow the "machinery" of state tort law, both procedural, as in application of a statute of limitations, and substantive, as in apprehension of proximate causation.
Due process / civil procedure / personal jurisdiction: J. McIntyre Machinery, Ltd. v. Nicastro
(U.S. 2011), denying state personal jurisdiction for less than minimum
contact by British machine manufacturer that marketed its product in
United States (Breyer, J., concurring, joined by Alito, J., in plurality
opinion of Kennedy, J., in 6-3 decision)
Due process / punitive damages / product liability: Philip Morris USA v. Williams
(U.S. 2007), holding that federal constitutional due process precludes a
state punitive damages award predicated on injury inflicted on
non-parties, i.e., even like injury on persons like the plaintiff, but
not before the court (Breyer, J., for the 5-4 majority, joined by
Roberts, C.J., and Alito, Kennedy, and Souter, JJ.).
Preemption / product liability / warning defect: Merck Sharp & Dohme Corp. v. Albrecht (U.S. 2019), holding that FDA regulatory decision might or might not preempt state warning defect claim, and question is one of law for the court (Breyer, J., for the majority, in part unanimous, in part 6-3, joined by Ginsburg, Gorsuch, Kagan, Sotomayor, and Thomas, JJ.).
Preemption / product liability / design defect: Williamson v. Mazda Motor of Am., Inc.
(U.S. 2011), holding that flexible federal regulatory standard did not
preempt state claim against automaker (Breyer, J., unanimous decision).
Evidence / experts: Kumho Tire Co. v. Carmichael
(U.S. 1999), extending test for admissibility of scientific evidence to
other technical expertise (Breyer, J., unanimous decision).
Arbitration / class action: Green Tree Financial Corp. v. Bazzle (U.S. 2003), leaving to arbitrator to decide whether to permit class action when arbitration agreement was silent on the question (Breyer, J., for a plurality, 5-4 decision, joined by Ginsburg, Scalia, and Souter, JJ., and Stevens, J., concurring).
The article is Emily Field & Y. Peter Kang, 6 Breyer Product, Personal Injury Opinions Attys Should Know, Law360 (Jan. 27, 2022) (subscription required).
While acknowledging Dinklage's objection as legitimate, Noah admitted, "I've never watched Snow White and found the dwarves offensive. All right? But I do understand what he's talking about. I genuinely do. Because if that movie was called 'Snow White and the Seven Blacks,' I mean, that would be weird."
Noah's take nicely illustrates one dimension of the perspective problem in social research, and it's especially salient in comparative law. Like Noah, I never thought about the seven dwarves as an insulting characterization of people with dwarfism. But after hearing Dinklage's perspective from within the dwarfism community, I can perform a "mental rotation" (to use the psych term) and empathize.
The problem when researching law and society in an unfamiliar context, whether it's a shared physical condition, a religion, or a political state, is that my perspective is shaped by my own limited experience in ways that I might not even be conscious of. The perspective problem can never be entirely eliminated in social research, but it can be mitigated. It's helpful to think consciously about one's perspective to gain some cognizance of the limitations of one's research.
As to the Seven Dwarves of fairy-tale fame, Disney announced that it is "taking a different approach with these seven characters and ha[s] been consulting with members of the dwarfism community." I look forward to what creative minds will yield.
Incidentally, in the same Daily Show, Noah did an excellent piece on insider trading in Congress. Just last week I noted a publication on the subject by Spencer K. Schneider, a former teaching assistant of mine. I added a video embed from Comedy Central to the bottom of that post.
I have some Gorilla Glue right on my desk. I love the stuff, except how it hardens in the bottle before I can use it all, an apparently intractable malady of super glues. I got out my reading glasses, and the tiny print on mine says:
WARNING: BONDS SKIN INSTANTLY. EYE AND SKIN IRRITANT. MAY PRODUCE ALLERGIC REACTION BY SKIN CONTACT. Do not swallow. Do not get in eyes. Do not get on skin or clothing. Do not breathe in fumes. KEEP OUT OF REACH OF CHILDREN. Wear safety glasses and chemical resistant gloves. Contains ethyl cyanoacrylate. FIRST AID TREATMENT: If swallowed, call a Poison Control Center or doctor immediately. Eyelid bonding: see a doctor. Skin binding: soak skin in water and call a Poison Control Center. Do not force apart. For medical emergencies only, call 800-....
Image by RJ Peltz-Steele CC BY-SA 4.0 with no claim to underlying content
No mention of hair, so I guess the warning label will have to be longer now. The hair incident prompted a Twitter response from Gorilla Glue, lamenting the misuse and wishing Brown well.
Whether and when to acknowledge an unapproved use of a product always has been an intriguing problem in the practice of product liability defense. Foreseeability is a key part of the product liability test in many states, so a maker with actual knowledge of an off-label use is sometimes wrangled into having to warn against the absurd. That leads to some funny results, as evidenced by the label collection that my friend Prof. Andrew McClurg has maintained since before the internet was a thing, now a feature on his legal humor website.
In the analog days, a sharply worded letter might have been an adequate response to the customer who wrote in with helpful intention to suggest how effective oven cleaner might be for mole removal. Woe be to the product maker whose goods turned up in a book such as Uncommon Uses for Common Household Products, which taught people how to MacGyver products to exceed their design intentions. (And there's a small but fascinating sub-genre of publisher-defense cases at the intersection of product liability and First Amendment law.) At that point, it was time to update the warning label, if not issue an affirmative press release, because it would no longer be plausible to argue lack of foreseeability to a jury. The anticipatory defense would have to shift focus to other theories, such as unavoidable dangerousness and consumer responsibility.
The democratization of mass communication through the internet and social media has accelerated the timeline. So now we see quick responses to individual incidents, such as Gorilla Glue's on Twitter.
The instant case is not firmly in the genre of unintended uses, because Brown intended at least to use the glue for its adhesive property. Still, I'll go out on a reasonably secure limb and say that any lawsuit arising from the instant incident, at least upon the facts as reported so far, would be frivolous. More likely, the TikToker in question has accomplished her mission by being the talk of the electronic town.
UPDATE, Feb. 13, 2021: Princess Weekes at The Mary Sue cautions us not to be manipulated by defense tort reformers into too readily siding against Brown, like in the Hot Coffee case. I don't think I've been so co-opted, but such an admonition is always well advised.
It was painful and offensive to me to see the Columbus statue in Baltimore ripped down and thrown into the harbor on the Fourth of July.
I appreciated Trevor Noah's Daily Show commentary on Columbus Day, aired last week, because he recognized the meaning of the holiday to the Italian-American community.
Noah excerpted a Vox video (story), from 2018, which gave a good concise summary of how the Columbus holiday came to be.
The video describes "the legend of Columbus," and it is a legend. Italian-American immigrants, such as my grandparents, came to embrace a legendary Columbus who bore little resemblance to the real historical figure. Which is not to say that the legend lacked real meaning for real people. There was a time when Italian-Americans were a "non-white" minority in America, Noah acknowledged. The community reached out to adopt, and partly to create, a galvanizing icon.
I studied Columbus quite a bit as an undergrad majoring in Spanish-language literature during the quincentenary of "the Discovery." As best as we can know Columbus, which is not much, given a paucity of surviving and conflicting accounts, the truth must be that he was complicated. People are. He had a multiplicity of motives, some more morally laudable than others. And probably he wasn't the sweetest sort of guy. Crossing the Atlantic Ocean with a potentially mutinous crew of adventurers in 1492 was a rugged business, if not recklessly suicidal. But Columbus did not invent Euro-centrism, Caucasian supremacy, or slavery. The cultural arrogances and inhumane institutions of the 15th century were certain to encircle the globe aboard every ship that departed the continent.
So my family, arriving in America in the 20th century, embraced a legend. It wasn't a terrible choice of legend. The first Italians to populate Baltimore sailed from Genoa, which is where Columbus probably was from. My grandparents, who also came to America by boat, from Tuscany, revered Columbus well before the dedication of his Little Italy statue in 1984. Through their Italian-American organizations, they contributed to the creation of the statue, which was made of marble and crafted by an Italian sculptor. President Reagan and the mayor of Baltimore dedicated the statue in Baltimore's Little Italy, where my family first lived after immigrating. When I was a kid, I was taken to Little Italy when my family volunteered and participated in religious rites and Italian-American festivals. Later, and for many years, my uncle played the character of Columbus in Baltimore's Columbus Day parade, which started and ended at the Columbus statue. I remember him decked out in cartoonish royal robes, standing atop a float mock-up of the Santa Maria, waving to smiling people, of all colors, who lined the streets.
He stopped when it became dangerous to be Columbus. Dangerous to celebrate our history in America, however reimagined and romanticized.
I'm not opposed to taking down statues of Columbus. I've advocated for "fallen monument" parks, as abound in former Soviet states, Hungary's being the most well known. They're immeasurably valuable to teach history. They proffer powerful evidence that, try as we might to be good and to do right, morality has proven a stubbornly mutable ambition in the human experience.
But taking down Columbus in Little Italy should have been a decision made by a cross-section of community stakeholders, not by a mob. An effort had been under way in the Italian-American community already to raise money to move Columbus elsewhere. The mayor of Baltimore promised prosecution of the vandals on July 9, but I've found no report of any arrest or charge to date. The Italian-Americans who contribute still, vitally, to Baltimore's identity deserve better. They deserve respect, right alongside every other community that has built Baltimore as a vibrant and diverse city.
As Noah observed, American history is now populated by many Italian-Americans who don't need aggrandizing legends to demonstrate greatness. It's not too late to create the commission that should have been and to start talking about how to honor immigrant history and the City of Baltimore at the intersection of Eastern Avenue and President Street. I don't know who, or what, might, or should, stand in "Columbus" square. I do believe that if we work at it, we can find, or make, an icon that my grandparents would have appreciated, and at the same time raise a testament to a new story.
A new Apple TV+ show has Saturday Night Live alum Jason Sudekis playing southern-drawl-wielding American football coach "Ted Lasso," as he is recruited to coach an English Premier League (PL) soccer squad.
Lasso's fictitious team in the Ted Lassocomedy series is "AFC Richmond," but Sudekis wore an authentic Manchester City FC (my team) hoodie for his interview with Trevor Noah on last night's Daily Show.
Financially regrettably, this show compels my wife and me to re-subscribe to Apple TV+. We shelved the channel, pending new content, after we finished the highly gratifying For All Mankind (blog), and after I finished the sufficiently compelling if after all tritely pedantic Morning Show (both shows 2019, second seasons forthcoming).
Ted Lasso is a co-creation of Scrubs(2001-2010) creator Bill Lawrence, which scores dispositively in my playbook, though I don't think Lawrence has since re-created that Scrubs magic. Ted Lasso is a spin-off, or spin-up, of NBC Sports promotional shorts imagining Lasso's appointment as head coach of Tottenhan Hotspur.
Incidentally, I'm a consistent critic of NBC's intellectual-property monopoly over PL broadcast rights in the United States. NBC carves up the PL season so that one would have to subscribe to an impossible, and impossibly expensive, range of commonly owned services to follow a favorite team. Americans would never tolerate such exploitation of American football broadcast rights. NBC and the PL are greedily short-sighted, because inculcating loyalty to a single side is essential to sell British soccer to the American viewer in the long term. It remains to be seen how UK regulators would react were NBC, since merging with Sky, to dare to try such such shenanigans there, where team loyalty is a multi-generational sacrament. Other sports-loving countries won't have it.
Sports comedy is supremely watchable when it's well executed. I thoroughly enjoyed Hank Azaria's Brockmire (2017-2020), though I have not watched baseball in many years. And who can forget comedy-drama Sports Night(1998-2000)? The West Wing(1999-2006) is too often credited for Aaron Sorkin's introduction of fast cuts and fast-paced dialog into small-screen canon, but it was on Sports Night that he pioneered the art.
The Sudekis interview appeared on The Daily Show just a day after Trevor Noah opened with some Premier League humor (cue to 1:13), noting Aston Villa's defeat of both Manchester United and Liverpool, the latter 7-2. Noah is a Liverpool supporter.
Comedic media have recently lampooned with delight the President's sing-song description of litigation over the "national emergency" at the border. (My favorites are Trevor Noah's "Guitar Hero" take and Stephen Colbert's "Torah reading."Jake Tapper told Colbert aptly that Trump's description might actually prove correct.) Then Bernie Sanders entered the race and admonished media that if his ideas were once fringe, they are no more. Access to higher education always has been a key part of his platform.
This confluence of events made me nostalgic for the quixotic character of the savant President Bartlett of The West Wing (1999-2006). To be clear, this is not a political statement: I'm not condemning Trump, nor endorsing Bernie, nor, least of all, saying anything about the politics of Martin Sheen, Rob Lowe, and Allison Janney. I just wanted for a moment to set politics aside and revel in the appeal of a President who appreciates good writing and the power of language. So I looked up this video introduction to West Wing season 2, episode 9, "Galileo V," aired November 29, 2000—ten months before September 11. O simpler times and innocent idealism.
