The Laboratorium
December 2003

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Extreme Brand Extension

Crest has a toothpaste flavor out called "Cinnamon Rush." While the flavor itself is fairly pleasant, the name is a bit disconcerting.

Other items presumably coming soon:

  • Ritalin X-treme
  • John Updike's Rabbit is Rad
  • Atomic Blast Cheddar
  • Microsoft Tropical Fruit Windows
  • Soothing Pastel Terror Threat Levels (sea foam, periwinkle, goldenrod, peach, and rose)
  • Electric Surge Paper Towels

23 Love Songs

Abridging the Magnetic Fields's 69 Love Songs to a more managable number is a bit of a cottage industry. Rick Moody's selection of 31 is perhaps the most famous.

Me, I decided to go for 23, in keeping with a friend's claim that there's one album's worth of good songs in the collection. Here they are:

  • Absolutely Cuckoo
  • I Don't Believe In The Sun
  • All My Little Words
  • I Don't Want To Get Over You
  • Come Back From San Francisco
  • The Luckiest Guy On The Lower East Side
  • I Think I Need A New Heart
  • The Book Of Love
  • Nothing Matters When We're Dancing
  • The Things We Did And Didn't Do
  • When My Boy Walks Down The Street
  • No One Will Ever Love You
  • (Crazy For You But) Not That Crazy
  • Kiss Me Like You Mean It
  • Papa Was A Rodeo
  • Epitaph For My Heart
  • The Sun Goes Down And The World Goes Dancing
  • Busby Berkeley Dreams
  • Acoustic Guitar
  • The Death Of Ferdinand De Saussure
  • Bitter Tears
  • Yeah! Oh, Yeah!
  • The Night You Can't Remember

The first observation that strikes me is that my list has 13 songs in common with Moody's. This is only two or three songs more than you'd expect if one or both of us had chosen our list by throwing darts. So perhaps there is one good album's worth of songs in this triple album but everyone's good album is different.

The other thing that strikes me is that I had a very easy time picking my first dozen songs or so to cut. The utter gimmick songs, the ones with really hideous distorting effects, the spoken-word ones -- all easy choices. At this point, the decisions got harder -- I had a difficult time singling out any particular song as being substantially older or less firm than the rest of the pack.

But once I broke through that barrier, things were very easy for a long time again. Thus, once I cut "Fido, Your Leash is Too Long," I had no compunctions about cutting "Boa Constrictor." It was only in singling out the 24th through 29th songs or so that I had a hard time again. 69 Love Songs really does have a trimodal quality distribution, as my friend asserted. The lumps aren't really even thirds, but there is a fairly natural division into dreams, dross, and dreck.

(Corporate) Crime and Punishment

As you probably know from watching the Eliot Spitzer show, corporations can be convicted of crimes. Under traditional moral theories of individual desert, this concept is complete gobbledegook: corporations don't have minds, so they can hardly have the "guilty mind" required to justify criminal punishment. But once you have the "artificial person" fiction in regular use, pretending that the corporation has a mind too isn't too big a step (indeed, some articles on the theory of punishing companies have suggested that conviction turn on the nature of the corporate "ethos").

Now, most of the academic literature on punishing corporations takes, so far as I can tell, a fairly economic approach to the question. The issue is treated as one of deterrence of unwanted conduct; the risk of a criminal conviction becomes another factor the company's officers must weigh when deciding what its policies will be. While these articles make a fairly good-faith show of it -- they run through the incentives of shareholders, officers, and employees, and try to figure out how legal pressure actually filters into individual actions -- I keep getting the sense that their hearts aren't really in this whole corporate-criminality thing.

Why? Because you can't send a corporation to jail. The "artificial person" metaphor can only be stretched so far. If all you can do is fine a miscreant corporation, then why bother with criminal law at all? You could squeeze equally-large penalties out of either by letting aggrieved victims sue it in tort, or by having the government sue it (as in antitrust) or just slapping it with administrative fines (as in the do-not-call list). Either way is cheaper, easier, and surer, because you can avoid many of the defendant-protecting rules of criminal law and procedure. So why bother?

The usual answer -- and this is where you can really hear these authors saying "don't ask me; I just work here" -- is that criminal convictions carry some stigma with them. It's bad to be a criminal. People don't like criminals. Being convicted of a crime is shameful. This stigma is a "kicker," something over and above any actual sentence or penalty imposed. It's a scarlet letter, a black flag. Not only does your desire not to wear this badge of shame motivate you not to commit crimes; it serves as a signal to the rest of society that crimes and criminals are bad. The act of convicting criminals in this fashion serves as a kind of public recommitment to the dignity of victims, a social confirmation that crimes really are a deviation from the normal and proper order of things.

Now, here's the thing. It's really hard to fit this kind of theory into the practice of convicting corporations. There's simply no one to bear the stigma, goes the thinking. Once again, you can't stretch personhood too far. Perhaps stigma means stigmatizing the shareholders -- but in practice, that never happens. People who owned stock in Enron get our sympathy, not our condemnation. Or perhaps it means stigmatizing the officers and employees of the corporation -- but the vast, indeed, overwhelming majority of them will be utterly innocent of any wrongful intent, in any meaningful sense. Punishing many innocent people in order to reach a few guilty ones strains against our sense of justice. Hence the discomfort of many commentators; the typical approach seems to be to try and cram the stigma somehow into an instrumental theory of deterrence.

I think I have a better idea.

The fallacy above is in the assumption that corporations, being only juridical creations, don't have enough of the attributes of personhood in order to be stigmatized. A moment's reflection on the nature of modern marketing, though, shows why they do. We live in the age of branding, of corporate identity, of mascots, of cartoonish corporate spokesfigures. Most of the value in a corporation, we are told, inheres in its reputation, in the coherent and positive associations of its line of brands. Corporations take out ads and sponsor events and hold press conferences and do a zillion other things purely to build a sense of identity in the minds of the public.

Yes, corporations aren't internally people. But that's wholly beside the point when it comes to convicting them. The point of criminal stigma is in the external manifestations of identity. The point of convicting you criminally (other than being able to throw you in the slammer) is to give you negative associations in the eyes of others. And in that sense, it's perfectly sensible to stigmatize corproations. When I read that a brokerage house is being threatened with criminal prosecution for insider trading, I associate their happy logo and sober-voiced ad copy with all sorts of sleazy goings-on. Now, normally when people try to associate Smilin' Joe Fission with sleazy goings-on, that's trademark tarnishment, and the power plant can go to court to get an injunction against the association. Which is to say that we already have a judicially-cognizable concept that captures this sense of corporate reputation. If we can think about corporate identity positively -- in the context of trademark -- there's no conceptual barrier to our thinking about it negatively -- in the context of criminal conviction.

Which leads me to the following suggestion: why don't we add a trademark remedy to the list of possible sanctions for criminally-convicted corporations. In addition to fines, we could strip corporations of their trademarks. Or, if we were willing to be a bit more subtle, we could bar them from bringing tarnishment actions. (I'd personally add dilution actions, too, just because judges seem so willing to expand the scope of dilution. If we didn't throw it in, there's a danger that dilution would grow to take in what we now as tarnishment. Let's take away some of their domain-name causes of actions, too, while we're at it.) People who disliked the corporation could make fun of its identity and its brands and use them in variously foul, demeaning, and disrespectful ways. The overall effect would be that the corporate image would be tarred in people's minds; we'd look at it and think of it, quite literally, as a corporate criminal.

If you wanted to be even craftier, you could use this one as a remedy in cases where the wrongful conduct in some way connected to branding and corporate image. False advertising, trademark abuse, and misleading business practices come to mind. Thus, in a Nike v. Kasky situation (yes, yes, that was a civil case, I know), what better way to discipline a corporation for falsely burnishing its image than by opening it up to some tarnishment? There's a fit there between crime and punishment that's expressively right. Personally, I'd rather have the remedy available more broadly, nor do I (yet) think that it really cures the potential First Amendment problems lurking in some of these causes of action, but there is something appealing about saying that bad corporations are bad by taking away the very trademark rights they use to lie about their badness.

Dumb News Day

I don't know what it is, but yesterday was a bad day for intelligence in the news.

Case one: The Plain English Campaign's award of a "Foot in Mouth" award to Donald Rumsfeld for saying

Reports that say that something hasn't happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns � the ones we don't know we don't know.

The only problem: it's a perfectly comprehensible statement in clear and simple language that makes a quite straightforward point about the limits of knowledge. Even the Guardian, normally not a bastion of Rumsfeld boosters, has come out in his corner on this one.

Case two: Nicholas Kristof's column on the biology of homosexuality, which contains the following howler:

The arguments get far more complex, of course, but I hope that religious conservatives will ponder this question: If homosexuality is utterly contrary to God's law, why is it so embedded in human biology and in the rest of the animal kingdom? (Serious journal articles have described supposedly lesbian seagulls.)

Only the ignorantly irreligious would think that this question is such a toughie as he seems to. Start with the animals. To a religious conservative, homosexuality in the animal world is morally irrelevant, since animals lack souls and human volition. That some seagulls are lesbian is of no more moral importance than the shape of clouds.

And as for people, in the words of Steven Wu, "The content of God's laws is not defined by who complies with them." God made it all, the great and the small, the good and the sinful. The normal religious argument -- homosexual desire is a form of temptation, and goodness consists in resisting that temptation -- is utterly unaffected by any empirical data on the prevalence of homosexuality. God's commands take precedence; indeed, the moral point of His commands is that we have the free choice to accept or reject them. Homosexuality is just another sin, like murder or blasphemy, that humanity must struggle to overcome.

There are winning arguments for sexual tolerance. There are winning arguments for sexual tolerance that might have some impact with religious conservatives. But Kristof's is not one of them.

Case three: The following quotation from a Republican strategist, on the decision to abandon the floating party ship idea for the GOP convention next year:

A lot of disingenuous people made a mountain out of a molehill, and DeLay just decided to let the moles win.

Me, I always figured that if I were a mole, I'd rather have a molehill than a mountain. But maybe that's just me.

Case four: The headline on this article on professional ethics actions against one of George Harrison's doctors:

George Harrison doctor fined for talking

I'm glad I'm not a doctor.

A Billboard I’d Like to See

This country was founded by secular humanists, and if you don't like it, you can just leave.

The Stakes Are So Small

For the past three months, people have been discussing summer employment. I think all interesting lines of conversation were exhausted about two months ago. Everyone has multiple job offers from prestigious but indistinguishable firms offering large salaries, and yet the stress goes on.

I think finally understand: people are having such trouble because so little is at stake. It's like faculty politics, or lawsuits over twelve-dollar debts. Summer jobs -- especially one's last summer job before lucrative full-time lawyerly employment -- are supposed to be big deals. And yet the law firms at which one might work are all but identical.

People are engaging in elaborate shadow dances, trying to reassure themselves that these critically important life decisions are being made for some good reason. But no such reasons exist: the law firms involved are all but identical, who got offers where was largely a matter of chance, and the quality of your summer will be determined mostly by factors other than your choice of firm. The result: enormous stress and anxiety is being poured into a largely symbolic decision, with the result being extreme overtheorization and fretful indecision.