Legal Commentary

After reading Paul?s post below, I became very concerned that The Volokh Conspiracy might surpass this blog in vacant chatter, so I?ve decided to quickly add some more here so that we (like the Minnesota Twins last night) can once again take a half-game lead.

Here at Oklahoma City University School of Law, one of our great strengths over the past few years has been in law and rock music.  Alex Long, who has blogged about this topic before, published the seminal article on this subject while on the faculty here a few years ago (We?ve now sadly lost him to the Univ. of Tennessee?s Law and Lyrics program, but are committed to rebuilding our strength in this area).  Mike O?Shea has also made some trailblazing contributions to deciphering the mumbled, feedback-smothered words of My Bloody Valentine songs.   

Following the example of others who have started up a ?research canons? project here on PrawfsBlawg, I?d like to begin this master compilation of law-related lyrics on various subject areas, along with my tentative hypotheses about their law-related meanings, so that we might ? together ? create a database on law and rock music that will one day replace the casebooks we currently use in class:

Property is the obvious place to start, since famous rock bands have been kind enough to write songs dedicated to takings clause questions (Joni Mitchell: ?they paved paradise and put up a parking lot? and Jethro Tull: ?They say they gave me compensation...?That's not what I'm chasing. I was a rich man before yesterday.? And what do I want with a million dollars and a pickup truck?? When I left my farm under the freeway?).  Evidence is also a popular subject among rock singers, as is clear from REO Speedwagon?s famous song about hearsay (?heard it from a friend who, heard it from a friend who, heard it from another you been messin? around?) and from Arlo Guthrie?s song Alice?s Restaurant (that discusses the introduction into evidence of visual diagrams and photographs).

But what I think is of more interest to me are the more subtle legal analyses one often finds in more obscure indie rock pieces, like the following:

ON EMPIRICAL ANALYSIS OF JUDICIAL VOTING

?Cause you go on and off, there ain?t no way of ever finding out.
It?s the law man, you gotta understand,
think about the [impossible to make out: symptoms too much?]. 
Never underestimate a single opportunity.?
(Moving Targets, Faith on the LP Burning in Water (1986))

This has got to be about Justice Kennedy and the impossibility of predicting whether he?ll be with the liberal or conservative bloc.  Note that the lyrics also insinuate ? years before the damning New Republic article -- that opportunism may be at the root of this unpredictable behavior.  That's all just a (possibly mistaken) hypothesis.  But what?s remarkable about the song is its prescience:  it was released in 1986, over a year before Justice Kennedy was nominated to the Supreme Court!  Now I?m not saying that the quantitative analysis here is necessarily up to the standards of the best empirical analysis in legal scholarship, but it?s pretty good considering they didn?t yet have any votes from Justice Kennedy to analyze.

ON JURISPRUDENCE AND POLITICAL THEORY

?They take away our freedom
In the name of liberty
Why don?t they all just clear off
Why don?t they let us be.?
(Stiff Little Fingers, Suspect Device, on the LP Inflammable Material (1979)

Isaiah Berlin is the most famous figure to outline the distinction between negative and positive liberty and to explain why it is dangerous to substitute negative liberty (the absence of constraints on, or barriers to, action) with positive liberty (liberty that consists not simply in being let alone, but in some type of human capacity, often one requiring collective action and constraint on individual choice in order to enable the relevant capacity).  But as powerful as Berlin?s essay is, I think that Stiff Little Finger?s restatement of the argument is in some respects more powerful ? if only because they had much louder amps and, being a late 1970s punk band, screamed and growled their lyrics rather than simply singing them (over the otherwise irresistibly catchy melody).

?I try to find a way to be free
of everything that?s troubling me
But freedom?s such a fickle thing.?
(The Jean Paul Sarte Experience, Spaceman, on Bleeding Star (1993)).

Same as above.  According to the always correct Wikipedia, the band had to change its name to the "JPS Experience" in response to threats of a lawsuit from the estate of Jean Paul Sartre.  Goes to show that if you?re going to name your band or hit song after a philosopher, you might want to choose one whose heirs won?t take you to court over it (e.g., the Ohio band, ?John Stuart Mill,? or The Dandy Warhols? song ?Nietzsche.?)

ON REMEDIES

?There?ll be a calmer time when everything?s organized
Everything?s simplified
No one persuading me to seek some prize
That isn?t found anywhere
There?s karmic injustice here
But who do you sue?
(The Chills, So Long on Soft Bomb (1992))

That?s a really good question from Chills lead singer Martin Phillips.  A student once asked me that in Admin Law and I didn?t know the answer (Is there a Court of Karma? If so, is it an Article III Court or is it an agency tribunal within the Treasury Department?).  Since The Chills are from New Zealand, Phillips? answer is likely to be quite different from the one we would teach in US law school remedies classes, (as is Culture Club?s ?Karma Chameleon,? which comes from England), so I?m hoping an American band will cover this song and change the lyrics to reflect domestic law.

ON CRIMINAL LAW AND PUNISHMENT

?The golden-eyed hypnotist
Who slides down our throats
Will turn us to supermen
We?re stuck in a loop again
And I?m waiting
For the recidivist
To change his ways
Or to reoffend?
(The Bevis Frond, Old School Rock, on Valedictory Songs (2000)).

An illuminating tune, from the always illuminating Bevis Frond, about drug regulation, or recidivism, or maybe the use of forced medication to transform hardened criminals into nicer people and/or trial-ready defendants.  As you can probably tell, I have no idea what this song?s about, but ?recidivist? and ?reoffend? clearly make it appropriate for criminal law classes.

?Come on babe
Come on set me free
I?ve paid for my crime
Come on babe
Come on rescue me
Just this last time.?
(Dinosaur Jr., Kracked, on Living All Over Me (1987))

Clearly about the Supreme Court?s review of habeas petitions.  Or maybe parole board proceedings.

?Every night it?s gotta be adventure
The way you live your life?s a crime
And if you?re guilty will you serve the sentence
You are already doing time.?
(Husker Du, Friend, You?ve Got to Fall, on Warehouse Songs and Stories (1986))

As far as I can tell, Husker Du is agreeing with Justice Scalia that government should be able to criminalize acts on the basis of public morality even if such acts don?t justify government restriction on the basis of John Stuart Mill?s harm principle.

?His lawyers said, ?This boy is sick.
Blame the ratings for his crime.?
They said ?Too much sex and too much violence on the idiot box
Spoiled his idiot mind?
He was a Television Addict!?
(The Victims, Television Addict, which was a single in 1978 and also on the LP ?All Loud on the Western Front.?).

This just makes the obvious point that responsibility for violent acts should be that of the television shows that motivate them and not the people who commit them.

ON THE LIFE OF ASSOCIATES IN LARGE LAW FIRMS

?Call me on the line
Call me call me any anytime
Call me . . .  you can call me any day or night?
(Blondie, Call Me ? single (1980))

?You just call out my name, and you know where ever I am
I?ll come running to see you again.
Winter, spring, summer, or fall, all you have to do is call and I'll be there, yeah, yeah?
(James Taylor, You?ve Got a Friend, on Mud Slide Slim (1971))

I think these lyrics speak for themselves.

OK.  That?s enough vacant chatter on this incredibly important subject.  If anyone has lyrics that shed light on John McCain?s recent behavior regarding the proposed bailout, or on Sarah Palin?s CBS interview, please let everyone know.