A Tenancy in Common Tragedy

Posted on Categories Property Law, Public, Real Estate Law2 Comments on A Tenancy in Common Tragedy

pic of Surfside, Florida condo building, showing collapseThere is lots of blame to go around for the horrifying collapse of the Champlain Towers condominiums complex in Surfside, Florida, in June 2021:

(1) Engineers’ reports on structural flaws in Champlain Towers could have been more forceful and explicit,

(2) Members of the Champlain Towers condo board could have been more attentive and willing to act regarding the dangerous conditions, and

(3) State and local governments could have made inspections earlier and warned that the residents of Champlain Towers of their vulnerability.

Add to the list of causes for the disaster the tenancy in common (TIC) and the modern-day attitudes about ownership of property that the TIC brings to the surface.

Many will recall from first-year Property that a TIC is a shared tenancy in which each owner has a separately transferable share of the property but may not claim ownership of a specific part of the property.  All of the tenants in common are able to use the whole property.  TICs emerged in early-modern England and were much treasured by the gentry as a way to consolidate family interests.  Family bloodlines, after all, were often indistinguishable from family property lines.

A variety of the TIC has lived on into the contemporary United States and is common in what seems sometimes like our ubiquitous condominium complexes. Continue reading “A Tenancy in Common Tragedy”

Jury Duty in de Tocqueville’s Time and in the Present

Posted on Categories Judges & Judicial Process, Legal History, Public2 Comments on Jury Duty in de Tocqueville’s Time and in the Present

Alexis de Tocqueville was a French aristocrat sent by his country to inspect American penitentiaries during the 1830s.  He dutifully delivered his report, but he also found himself interested in more than penitentiaries.  In Democracy in America (1835), he provided a wide-ranging and to this day highly regarded account of life in the youthful, rambunctious American Republic.  Somewhat surprisingly, de Tocqueville discussed at length the role and function of jury duty.

photo of jury summons

Although de Tocqueville recognized the jury as a “juridical institution,” that is, a body that renders verdicts, he was more interested in the jury as a “political institution.”  He argued that the jury “puts the real control of affairs into the hands of the ruled, or some of them, rather than into those of the rulers.”  The jury was a vehicle through which the citizenry could exercise its sovereignty.

What’s more, jury duty struck de Tocqueville as a “free school.”  “Juries, especially civil juries,” he thought, “instill some of the habits of the judicial mind into every citizen, and just those habits are the very best way of preparing people to be free.”  As a form of “popular education,” jury duty offers practical lessons in the law and teaches jurors their rights under the law.

Overall, de Tocqueville was pleased Americans took eagerly to jury duty and felt robust, active juries were extremely important in the success of the nation.  Jury duty, he said, “makes men pay attention to things other than their own affairs” and thereby “combat that individual selfishness which is like rust in society.”

How disappointed de Tocqueville would be learn how people perceive jury duty in the present.  While people who actually serve on juries tend to say their experiences were positive ones, a huge percentage of Americans dread receiving a summons for jury duty and do their best to avoid serving.  Websites such as “How to Get Out of Jury Duty” and “10 Ways to Avoid Jury Duty” are popular. Continue reading “Jury Duty in de Tocqueville’s Time and in the Present”

The Worst Places in America

Posted on Categories Criminal Law & Process, Health Care, Human Rights, Labor & Employment Law, Poverty & Law, Prisoner Rights, PublicLeave a comment» on The Worst Places in America

person sitting in wheelchair in empty nursing home hallwayNumerous social commentators have noted how the pandemic has hit the least powerful and prosperous parts of the population the hardest.  Infections, hospitalizations, and deaths have been disproportionally high among the poor, people of color, recent immigrants, Native Americans, and the elderly.

The pandemic has also underscored the worst places to work and live, with the pejorative “worst” referring to the way certain places weigh heavily on the body, mind, and spirit.  These places are not only individualized but also organized into types and categories.  I nominate three types of places as the worst in the United States:  prisons, nursing homes, and food processing plants.

Media accounts have reported at length on how COVID-19 has ravaged prison populations, but prisons were undesirable places long before the virus arrived.  The nation has in general abandoned any commitment to rehabilitate inmates, and prisons have deteriorated into demeaning, dangerous warehouses.  Diseases and medical problems are four to ten times as common as they are in the general population, and the Prison Policy Initiative and Wisconsin Department of Corrections estimate that 42% of the state’s inmates suffer from one or more mental illnesses.   According to the prominent sociologist Jonathan Simon, most of the nation considers prison inmates to be “toxic waste” of a human variety and thinks of the people who run the prisons as engaged in “waste management.”

Nursing homes have been the places in which 40% of COVID-19 fatalities have occurred, and some of the most excruciating pandemic scenes have involved distraught friends and relatives saying goodbye to confused and dying residents through tightly-sealed windows. Continue reading “The Worst Places in America”

October

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rural road surrounded by trees with fall colorsI welcomed the recent tips on the Faculty Blog about how law students and law professors might survive the problems and stress of the pandemic.  However, the thrust of the tips seemed to be that we just have to get through or move past the actual and symbolic October of our lives.  Poets, by contrast, have over the years been more inclined to say we should savor October and stretch it out in our consciousness.

Printed below is what the poet Robert Frost had to say about October.  The grapes mentioned in the final lines, I think, are all of us.  We could be richer in mind and spirit if October lasted as long as possible.  With “hearts not averse to being beguiled,” we could better take on the challenges life has thrown our way.

October
by Robert Frost

O Hushed October morning mild,
Thy leaves have ripened to the fall;
Tomorrow’s wind, if it be wild,
Should waste them all.
The crows above the forest call;
Tomorrow they may form and go.
O hushed October morning mild,
Begin the hours of this day slow.
Make the day seem to us less brief.
Hearts not adverse to being beguiled,
Beguile us in the way you know.
Release one leaf at break of day;
At noon release another leaf;
One from our trees, one far away.
Retard the sun with gentle mist;
Enchant the land with amethyst.
Slow, slow!
For the grapes’ sake, if they were all,
Whose leaves already are burnt with frost,
Whose clustered fruit must else be lost–
For the grapes’ sake along the wall.

COVID-19 and American Ageism

Posted on Categories Health Care, PublicLeave a comment» on COVID-19 and American Ageism
yellow t-shirt with a design that includes the covid molecule and the words "boomer remover"
A “Boomer Remover” t-shirt for sale on a website.

This post was written by Dr. David Papke and Dr. Elise Papke.

In periods of social strain, assorted societal biases are more likely to come in play. That seems to be the case with American ageism, and as a result it has become even harder than before to be an older American.

Ageism is a multifaceted phenomenon that includes micro-aggression, inattentiveness, harmful stereotypes, and, of course, bias and discrimination. Ageist people often claim that they are trying to help seniors or that they are only joking. Seniors usually see through this, but ageism nevertheless leaves many feeling inferior or even worthless.

One example of ageist rhetoric that has surfaced in the midst of the pandemic is “Boomer Remover.” Offensive and even a bit frightening, this meme or catchphrase refers to and implicitly endorses the notion that the virus will reduce the number of annoying Baby Boomers.

For some time now, Baby Boomers have been thought to be a drain on society’s resources, especially because of their uninsured medical expenses and need for financial support. Continue reading “COVID-19 and American Ageism”

Trump’s Willingness to Destroy Culture

Posted on Categories Federal Law & Legal System, International Law & Diplomacy, Public2 Comments on Trump’s Willingness to Destroy Culture
the Pink Mosque in Shiraz
Nasir al-Mulk Mosque (the Pink Mosque) in Shiraz

In the midst of our recent, deadly skirmishes with Iran, President Trump at one point threatened to bomb 52 sites that were “important to Iran and the Iranian culture.”  Commentators quickly pointed out that doing so would violate the UNESCO World Heritage Convention as well as the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.  (For just a sampling of those responses, see here, here, here, here, and here.)  For my own part, I was struck by the President’s understanding of “culture” and his willingness to destroy it. Continue reading “Trump’s Willingness to Destroy Culture”

An Anti-Labor Secretary of Labor

Posted on Categories Labor & Employment Law, Public1 Comment on An Anti-Labor Secretary of Labor

Given the never-ending political tumult within the Washington, D.C., Beltway, it was easy to overlook the Senate confirmation on September 26, 2019, of Eugene Scalia as Secretary of Labor.  The party-line confirmation vote irritated workers and their representatives, who pointed out that Scalia’s claims to be a neutral advocate of his clients’ interests helped obscure his long-standing anti-labor politics.

The Department of Labor was established as a Cabinet-level agency on March 4, 1913, the last day of the Taft presidency.  The Department’s purpose was to foster the well-being of wage earners by improving their working conditions and protecting their work-related rights.  Throughout the remainder of the twentieth century, nobody doubted the Department of Labor’s job was protecting working people.

Eugene Scalia’s career, by contrast, has been devoted to fighting workers and their unions on behalf of big business and the rich.  The son of late Supreme Court Justice Antonin Scalia, Eugene Scalia was employed for twenty years in the Washington, D.C. office of Gibson, Dunn & Crutcher.  He represented, among others, Boeing, Chevron, SeaWorld, UPS, and Walmart, not to mention assorted Wall Street banks. Continue reading “An Anti-Labor Secretary of Labor”

Cigarette Packaging and Smokers’ Rights

Posted on Categories Business Regulation, Health Care, Political Processes & Rhetoric, PublicLeave a comment» on Cigarette Packaging and Smokers’ Rights

I had the delightful opportunity at the beginning of the summer to deliver a conference paper in Portugal.  Lisbon’s cobblestone alleyways and bustling riverfront were exciting, but odd as it might seem, Portuguese cigarette packaging also caught my eye.

All cigarette packs in Portugal have graphic images related to the dangers of smoking cigarettes: rotted teeth, amputated toes, diseased lungs, stitched-up chests, and naked corpses sprawled out on coroners’ metal tables.  The images and the accompanying verbal warnings take up the fronts and backs of the packs, and brand names such as “Marlboro” appear only on the narrow bottoms of the packs.

None of the Portuguese smokers to whom I spoke – and there were plenty – seemed particularly offended by the packaging.  So-called “scare messages,” after all, are genuinely intended to get smokers to stop.  They are consistent with the World Health Organization’ s directives regarding cigarette packaging, and graphic images appear on cigarette packs in most European countries.

What about graphic images in the United States?  It briefly seemed that they would begin appearing after the passage of the Family Smoking Prevention and Tobacco Control Act in 2009.  The Act in fact mandated them, and the Food and Drug Administration (FDA) formally approved nine graphic images that it considered especially likely to make people afraid of smoking.

However, the tobacco industry and assorted neo-liberal pundits immediately rose up in arms.  The former, of course, worried about its profits, and the latter championed the “right to smoke.”  The graphic warnings, the pundits argued, interfered with freedom of choice.  They were the efforts of the nefarious “nanny state.” Continue reading “Cigarette Packaging and Smokers’ Rights”

In Support of the Humanities

Posted on Categories Education & Law, Higher Education, Political Processes & Rhetoric, PublicLeave a comment» on In Support of the Humanities

The seal of the National Endowment for the Humanities showing an eagle holding both arrows and an olive branch in its claws.Given the Trump Administration’s denunciations of various Americans and numerous manufactured crises, we might easily overlook its attack on the humanities.  For the third consecutive year, the Trump Administration has proposed closing down the National Endowment for the Humanities.  It has also proposed major cuts for the National Archives Administration and the complete elimination of the National Historical Publications and Records Commission.

The justifications for these kinds of cuts are predictable.  The endangered programs are said to be too costly, although the projected savings of only $28 million for National Endowment grants is not even a drop in the bucket compared to military and defense spending.  More generally, supporters of the cuts are prepared to echo the public’s growing skepticism about the value of the humanities, particularly because they purportedly do not result in marketable skills.

What we really need, some might insist, is more funding for STEM programs or, at least, a greater commitment to programs that develop roll-up-your-sleeves practical approaches to problem-solving.  These are the types of programs, it is claimed, that best prepare people for life and especially for work and employment in the context of the proverbial market economy.

Holding to the side the fact that STEM and skills funding already greatly exceed grants for teaching and research in the humanities, denigrators of the humanities overlook what might be gained from teaching and learning in such disciplines as art, classics, foreign languages, history, literature, music, philosophy, and religion.  Each of these disciplines in its own way invites us to reflect on the most fundamental of questions:  What does it mean to be human? Continue reading “In Support of the Humanities”

The Nanny State

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Ideological rhetoric not only lionizes heroes but also deplores villains.  It tells us what we should like and what we should hate.  Neoliberal ideologues, in this regard, typically praise deregulation, privatization, and the market economy while condemning the “nanny state” as especially villainous.  If we reflect critically on the nanny-state rhetoric, we might be able to limit the persuasiveness of one of neoliberalism’s most-favored notions and in the process recognize who is most powerful in our society.

For starters, casting anything related to a nanny in a negative light is curious.  Popular culture, after all, includes an abundance of perky, resourceful, and indomitable nannies, all of whom are devoted to the well-being of those under their care.  Thoughts of Mary Poppins, Fraulein Maria in “The Sound of Music,” and Nanny McPhee win a warm spot in just about everybody’s hearts.  I always enjoyed the resourcefulness of Fran Fine, who was played by the feisty Fran Drescher in the popular 1990s sitcom “The Nanny,” while my favorite boyhood nanny was the large anthropomorphic dog Nana in the Peter Pan stories.  She wore a charming bonnet, built castles out of toy blocks, and lovingly made the beds for the Darling children.

How and why does the image of a nanny become a negative one for the neoliberal ideologue? Continue reading “The Nanny State”

Putting Christ Back in Christmas

Posted on Categories Popular Culture & Law, Public, Religion & Law, Uncategorized1 Comment on Putting Christ Back in Christmas
Drawing of an elderly man in sleeping attire sitting in a Victorian style armchair and gazing at the ghost of an elderly man not unlike himself.
Scrooge and the Ghost of Marley by Arthur Rackham

Some are calling for a stronger connection between Christianity and Christmas, concomitantly rejecting the term “Xmas” as blasphemous, deploring the substitution of “Happy Holidays” for “Merry Christmas,” and urging generally that we “put Christ back in Christmas.”  Sincere religious beliefs prompt most of this campaign, but to what extent has Jesus Christ ever been the true heart of Christmas?

The Bible does not give the date of Jesus Christ’s birth, and it was not until the fourth century that the Catholic Church recognized December 25th as Jesus Christ’s birthday.  Historians have suggested the day was selected to coincide with pagan winter solstice celebrations that were held in many locations throughout Europe.  The solstice came at roughly the same time large numbers of cattle were slaughtered so they would not have to be fed during subsequent months.  Meat was as a result plentiful, as was the wine and beer that had been started during the preceding spring and summer and had now fermented.

In some areas, the partying was raucous and drunken, comparable perhaps to the partying that occurs at Mardi Gras.  Continue reading “Putting Christ Back in Christmas”

Pop Music and International Relations

Posted on Categories International Law & Diplomacy, Popular Culture & Law, PublicLeave a comment» on Pop Music and International Relations

The Korean pop music group Red Velvet, consisting of five women wearing blue and white outfits, pose on a stage in Inchon, South Korea.Some find the superficiality and commercialism of pop music troubling enough to justify ignoring the whole thing.  However, if a music fan approaches pop music with some variety of critical consciousness, the pop music fan can use it to consider everything from personal values to national identity.  If recent developments in the Korean Peninsula are any indication, pop music, a type of pop culture, can even play a role in improving international relations.

North Korea has traditionally been leery of South Korean and especially American pop culture.  For years, the North Korean government attempted to suppress DVDs and thumb drives with pop cultural television shows, movies, and popular music.  Often smuggled into North Korea from China, these pop cultural works struck the government as evidence of bourgeois decadence.  Mere possession of South Korean or American pop culture was a criminal offense and could lead to a sentence in prison camp. Continue reading “Pop Music and International Relations”