Tipping Points

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Leon Trotsky refused to tip, or so the story goes. In 1917, when he lived for ten weeks in the Bronx, he would lunch in Jewish émigré cafés. There, he not only declined to tip, but would also instruct the other customers to follow his example. Neither of these actions endeared him to the waiters, who would spill soup on him in revenge. Trotsky remained unmoved. Eventually, the waiters refused to serve him—which, it turns out, was Trotsky’s goal. Tipping, he believed, subsidized unfair labor practices. If the waiters were being paid enough, tipping would be unnecessary. Until then, they should refuse to do their jobs.

Today, many Americans are guiltily aware that their waiter or waitress makes less than the minimum wage and accordingly adjust their tipping habits upward. (The habit is so ingrained at this point that even in Seattle, where there is no “tipped wage” and the minimum wage is being raised to $15 per hour, people continue to tip.) Although they’d be ill-advised to follow Trotsky’s example, their generosity may not be as helpful as they would like to imagine. Readers of Sarah Maslin Nir’s New York Times exposé of nail salons—where workers are often paid, under the table, as little as $10 per week (and sometimes nothing at all)—might assume that the solution is to tip more. But Nir believes that this is no solution at all:

What about simply tipping more? This is also a fraught question. Manicurists, of course, depend upon tips, but they say their gratuities are frequently skimmed, or particularly if they are put on a credit card, never delivered. The impulse to make up the deficit in a worker’s pay with more in tips may be a noble one, according to advocates, but does little to solve the root problem, and in fact may perpetuate it. Owners often believe that the tips workers receive mean they do not have to pay as much in wages.

Tipping occupies a curious cultural position. It has been unpopular and controversial for almost as long as it has been around, but being a good tipper has become almost synonymous with being a good person. Its unpopularity, in fact, only seems to reinforce its virtuousness. And few ordinary subjects of conversation are as immediately explosive. Definitions of “standard” tipping vary so wildly—as do philosophies of tipping—that even people who tip the same amount can end a conversation disgusted with each other. Continue reading

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Culture, Authority, and the University

"Scholars at a Lecture," William Hogarth (1736).

“Scholars at a Lecture,” William Hogarth (1736).

Even the title—“What’s the Point of a Professor?”—makes it clear why Mark Bauerlein’s recent op-ed in The New York Times struck such a sensitive nerve. Bauerlein, a professor at Emory University, observed that in an era when “when college is about career more than ideas, when paycheck matters more than wisdom, the role of professors changes.” Students no longer seek to converse with professors, or even to learn from them. They want to get a grade and move on. The situation isn’t hopeless, Bauerlein argues. If professors would only devote more time to engaging with their students, some of these students might be changed.

The reaction to Bauerlein’s critique has been sharp. As L.D. Burnett points out in her important column, Bauerlein does not acknowledge the extent to which budget cuts have transformed universities. And as others have rightly noted, many hard-working professors still care deeply about and devote significant amounts of time to teaching well.

Below structural changes lie deeper cultural shifts. Bauerlein blames students for not caring and professors for not devoting enough care, but perhaps what is really at stake here is the shifting nature of authority in American life. The real issue is that administrators, the faculty, and students do not accept the authority of the university itself. In an age when growing old is unacceptable, acting as young as you feel is obligatory, and adulthood has lost its moorings, authority too is adrift.

Signs of this lost authority abound: First, universities have been thoroughly consumerized. They offer the courses and programs students want. As demands of the students shift, universities make accommodations—which suggests that there is no academic core that defines a college education. Second, universities invest their resources in building beautiful college campuses and providing student amenities, while cutting the tenure-line faculty. And third, universities have cut back on general education programs and invested in online programs to offer students what they want, how they want it, and as fast as they can get it—rather than offering what the faculty (as authority figures) think students need. Have it your way.

Many of these changes are being imposed by well-paid administrators (whose ranks steadily swell). But the faculty, too, have become uncomfortable with their own authority. Faculty members do not see themselves—or, rather, too few faculty members see themselves—as engaged in the moral and intellectual formation of young people. This does not mean that professors do not care or devote too little time to thinking about how to help students learn the material. It does mean that they are reluctant to assume the role of authority figures or be charged with contributing to the intellectual and moral formation of their students. Focusing on only the narrowest conception of student achievement, intellectualism without a soul, they reveal their uncertainty about the moral foundations of their work.

Ironically, the decade of the 1960s that Bauerlein looks back to with fondness was part of the problem. It inaugurated what Daniel Rodgers has called the “age of fracture,” an era in which anti-institutionalism replaced thinking institutionally, in which free choice and free markets mattered more than participating in shared social institutions.

Until we come to terms with what the loss of authority in our culture means—a loss that is clearly evident in our universities—students will only be reinforced in their view of themselves as consumers, empowered to study whatever they wish. So long as university administrators cater to the student-consumer; so long as professors are unwilling to see that the formation of students is both a responsibility and an opportunity (and not an exercise of coercive power); so long as students think they have to go to college, whether they truly want to or not—so long as these things are true, the challenge will be even greater than Bauerlein imagines. Professors matter a lot, but a good university education requires more than a good professor.

Johann Neem, professor of history at Western Washington University, is a visiting faculty fellow at the Institute for Advanced Studies in Culture at the University of Virginia.

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The Hedgehog’s Array: May 8, 2015

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Noteworthy reads from the last week:

“Are Emojis a Language?,” Becca Rothfeld
“But do emoji, which comprise so much of our textual communication, really constitute a language?”

“The Price of Nice Nails,” Sarah Maslin Nir
“The New York Times interviewed more than 150 nail salon workers and owners, in four languages, and found that a vast majority of workers are paid below minimum wage; sometimes they are not even paid.”

“Why Scientific American’s Predictions from 10 Years Ago Were So Wrong,” Sarah Zhang
“Recently, we did an experiment: We took an outdated issue of a respected popular science magazine, Scientific American, and researched exactly what happened to the highly-touted breakthroughs of the era that would supposedly change everything. What we discovered is just how terrible we are at predicting the long arc of scientific discovery.”

“The Attention Brokers,” John Herrman
“The marginalization of web publishers has been swift. This week seems to be a milestone, at least psychologically, as Facebook, which routes an enormous proportion of the world’s mobile web traffic, prepares to assume the role of funder, distributor and host for news.”

“Minding the Monster,” Ed Tubb
“For thirty years, Budreo had been in and out of prison for sexually assaulting children. Every time he got out, he got drunk and did it again. Besides, his case had become notorious, and his face was in the news. He’d never get a job, and he’d never make friends. Who was Haley to think he could help?”

Hedgehogs abroad:

“Organizing Enlightenment,” Scott Jaschik and Chad Wellmon
“In this sense, my book is a history of a cultural anxiety. In an age of media surplus and easily accessible information, what counted as authoritative and legitimate knowledge? Which sources should be trusted and which not?”

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The Hedgehog’s Array: May 1, 2015

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Noteworthy reads from the last week:

“David Simon on Baltimore’s Anguish,” Bill Keller
“The mass arrests made clear, we can lock up anybody, we don’t have to figure out who’s committing crimes, we don’t have to investigate anything, we just gather all the bodies—everybody goes to jail.”

“Frontiers of the Stuplime,” Katy Waldman
“There’s something wonderful about this dogged insistence on having nothing whatsoever to show for your time in class, especially given the cultural rage for productivity. And the seminar courts a drifting boredom that is seductive in its challenge to the cult of mindfulness. But: With the approval of the UPenn English Department, Goldsmith’s crafted a creative writing course that fails to generate any writing, one that to some extent paints basic college benefits like insight, growth, and learning as passé fantasies of the old guard.”

“On Intellectual Genealogies,” Matthew Schmitz
“Paul begat Augustine.”

“The Strange Afterlife of Edgar Allan Poe’s Hair,” Elon Green
“In the 166 years since his death, locks attributed to Poe have turned up in a number of places and collections, private and public.”

“The Eternal Return of BuzzFeed,” Adrienne LaFrance and Robinson Meyer
“In their respective eras, Time, USA Today, and MTV were all revolutionary. Each of those three companies had a different set of innovations, a different rise, a different fall—and each offers a different way of understanding BuzzFeed.”

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Throwing Away the Key

When he was eighteen, Rene Lima-Marin and a friend robbed two Colorado video stores of around $11,500 in total, threatening the employees of both establishments with a gun. Both men were charged with two counts of first-degree burglary and three counts of aggravated robbery. Under pressure from years of rising gang violence in Denver, Colorado’s 18th Judicial Court answered the growing public outcry with tough, new sentencing protocols. Lima-Marin found himself labeled a chronic offender, likely to commit further crimes if he remained free. Offered seventy-five years if he pled guilty, he decided to risk going to trial, hoping that a lenient judge would find some or all of the evidence inadmissible. That didn’t happen, and Lima-Marin ended up paying what the National Association for Criminal Defense Lawyers call a “trial penalty”: a far greater sentence resulting from the efforts of prosecutors to make good on their threats to add extra charges if an individual goes to trial. Convicted, Lima-Marin was sentenced to ninety-eight years.

Rene and Jasmine Lima-Marin on their wedding day in June 2013 with their son Josiah, left, and Jasmine's son Justus. Courtesy the Lima-Marin Family via change.org.

Rene and Jasmine Lima-Marin on their wedding day in June 2013 with their son Josiah, left, and Jasmine’s son Justus. Courtesy the Lima-Marin Family via change.org.

What makes the case remarkable is what happened next. In what his attorney legitimately believed was the result of an appeal (but was in fact the product of clerical error), Lima-Marin came up for parole after serving only a decade of what was essentially a life sentence. Released, he immediately moved in with his former girlfriend and became stepfather to her son. He found and held jobs. The couple married, became regular church-goers, bought a home, and had a son together. Lima-Marin mentored at-risk youth and coached his stepson’s soccer team. He committed no new crimes and successfully completed his five years on parole.

Then, five years and eight months after he was released, Lima-Marin received a call notifying him that his release had been a mistake and that a judge had signed the order for his arrest. He was picked up the very same day and, after a quick hearing, was taken back to prison where he faced at least seventy-five more years before possible parole.

All students of criminal law learn that there are five different justifications for the punishment of those who commit crimes: retribution, deterrence, rehabilitation, restoration, and incapacitation. In federal criminal practice, these rationales are explicitly spelled out by statute. And yet with all of these considerations supposedly in play, the vast majority of criminal sentences in the United States are handled with two tools, sometimes combined: financial fines and incarceration (often followed by a period of supervised release or probation). Our bluntest tool—incarceration—takes account of retribution (punishing a societal wrong), incapacitation (keeping someone dangerous off the streets), and deterrence (providing a disincentive for committing this kind of criminal behavior). Financial penalties reflect the need for restoration (making a wrong right), at least in cases of fraud and theft, although for the vast majority of offenses that result in fines (driving offenses or other crimes against “society”), the imposition of a monetary payment appears to be more about retribution and deterrence than anything else. Moreover, when fines with quickly accruing interest go unpaid, incarceration often results.

But while fines and incarceration satisfy most justifications for punishment, it would be hard to argue they do anything for rehabilitation. Indeed, with many jails and prisons now offering prisoners little or no any access to educational opportunities (sometimes even basic GED classes), vocational training, or mental-health or addiction treatment, few would say that incarceration is serving any rehabilitative purpose.

Although not alone, philosopher Jonathan Jacobs makes a persuasive case that incarceration, far from rehabilitating, usually has a corrosive effect on the character of prisoners. He points to several contributing factors: a lack of autonomy, the (at least seeming) arbitrariness of disciplinary regulations and sanctions, the constant threat of violence, the lack of meaningful social interactions, and inadequate mental-health care. Additional post-incarceration hurdles faced by a convicted felon (lack of access to government benefits and loans; severely limited employment possibilities) only increase the likelihood that he or she will be driven back to crime.

The most recent Bureau of Justice statistics on recidivism provide rates for state prisoners released from incarceration in 2005, but the results are staggering nonetheless. Two-thirds of the state prisoners tracked in this study were re-arrested (not necessarily re-convicted) within three years of their release. That number jumped to three-quarters within five years of release.

The case of Lima-Marin should make us stop and ask why we punish, and what happens to those we punish. The system of parole (abolished federally and in many states) used to provide for indeterminate sentences with the possibility of earlier release depending on a defendant’s behavior and demonstrated rehabilitation. The movement to abolish parole in the 1990s coincided with the push to legislate mandatory minimum sentences, the aim of both being the elimination of discretion, and therefore discrepancies, among criminal sentences.

But uniform sentencing is both a blessing (arguably counteracting racial and other biases) and a curse (removing the ability of a judge or parole board to individually assess an offender). Perhaps more important, eliminating parole removes the political risk of a recently paroled offender’s committing a new and grisly crime and the public outcry in response. Ultimately, though, the demise of parole sends a deeply demoralizing message to the incarcerated: We don’t care what you do to try to rebuild your life while you are in prison. In a much publicized contrast to the American system, Norway caps criminal sentences at twenty-one years, extending them in five-year increments only if it is determined that an offender is not rehabilitated by the end of his or her initial term.

Lima-Marin beat the odds on rebuilding his life without committing another crime within five years after his release, and he did so after serving only about a one-tenth of his sentence. In addition to causing us to think about the sheer length of the sentence he received at age 18, might not his story suggest that rehabilitation needs a more prominent place in our thinking about the means and ends of punishment?

Lisa Lorish is an assistant federal public defender in the Western District of Virginia and a graduate of the University of Virginia School of Law.

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The Hedgehog’s Array: April 24, 2015

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Noteworthy reads from the last week:

“The Liberal Arts vs. Neoliberalism,” Jackson Lears
“It is a platitude that we cannot defend the humanities without slipping into platitudes. Why is that?”

“An Ex-Cop Keeps The Country’s Best Data Set On Police Misconduct,” Carl Bialik
“The whole data-collecting operation is powered by 48 Google Alerts that Stinson set up in 2005, along with individual Google Alerts for each of nearly 6,000 arrests of officers. He has set up 10 Gmail addresses to collect all the alert emails, which feed articles into a database that also contains court records and videos.”

“Inside the Whimsical but Surprisingly Dark World of Rube Goldberg Machines,” Brendan O’Connor
“Our modern era is riddled with machines doing ever less consequential tasks in ever more complex ways. The machines are digital, not mechanical, but the difference between the maximalism of the Rube Goldberg machine and the minimalism of the iPhone is perhaps not so great after all.”

“Have We Seen the End of the 8-Hour Day?,” Nathan Schneider
“Twenty years ago, ‘flexibility’ was considered a good thing, a desideratum for working mothers gaining a foothold in workplaces designed for sole-breadwinner men. In the intervening years, however, the flexibility discourse that had been developed to meet the needs of white-collar workers, especially women, has been turned against blue-collar workers, especially women. ‘Flexibility,’ and control over what it meant, became the privilege of employers, not employees.”

“Managing the Decline of, Like, a Great Language,” Barton Swaim
“What I’m advocating is the grammatical equivalent of legalizing marijuana but regulating it. Maybe it will turn out badly, but the policy of interdiction has failed.”

“What World? Whose Algorithms?,” Eitan Wilf
“If search engines can and do use similar algorithms to analyze a user’s profile based on the corpus of his or her past online activity to dictate advertising and customized content, they can potentially entrap users in a self-referential and narcissistic world that hinders and stifles personal development and growth. Yet the same algorithmic technologies can be reconfigured for the opposite end.”

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Up in Smoke—Plain Packaging and Brand Identity

Athletes in a Camel cigarette ad from the 1950s, by Camel cigarettes [Public domain], via Wikimedia Commons

Athletes in a Camel cigarette ad from the 1950s, by Camel cigarettes [Public domain], via Wikimedia Commons

As plain packaging regulations for cigarettes ramp up in the European Union, opinions on the effectiveness of this strategy remain mixed, even contradictory. Plain packaging refers to the stark warning labels and gruesome photography that have become part of public health campaigns against smoking in Europe and Australia. Using black-and-white graphics designed for maximum readability, the warnings are simple and direct: “Smoking kills” or “Smoking causes blindness.” If you won’t help yourself, then they ask you to consider the well-being of others: “Smoking seriously harms you and others around you” or “Protect children: Don’t make them breathe your smoke.” Generic packaging requirements go even further: Packs of cigarettes must have no logos or identifiable branding devices and must use color photographs of diseased body parts or vulnerable children.

But plain packaging is not an unqualified success. In Australia, where these laws were first introduced, one report last summer noted that there had been a rise in tobacco sales, in spite of the regulations and a concomitant rise in tobacco taxes. The increase in sales volume—more people returning more often to buy the cheapest cigarettes—has also, according the report, led to an increase in smoking rates rather than the uniform decline predicted by plain-packaging advocates.

Around the same time, Financial Times reported that Australia has had a significant decrease in smoking rates since plain-packaging regulations were put into place in 2012. According to the 2013 National Drugs Strategy Household Survey quoted at ft.com, people are starting smoking later and overall consumption has gone down. The reporting of the effect of plain-packaging laws clearly depends to some extent on whether one is an anti-tobacco campaigner or a pro-tobacco spokesperson.

Statistics aside, plain-packaging laws have had notable unintended economic consequences. Typically, anti-tobacco regulation includes an increase in taxes and prices. When faced with rising prices, consumers seek out the cheapest cigarettes. As noted above, the proliferation of cheaper cigarettes has led to more people smoking more cigarettes. At the same time, because tobacco manufacturers are unable to enhance their brands through marketing or new package design, they may save money by investing less in advertising or upgrading factory equipment.

In addition, tobacco companies may further benefit by being able to lock in market share, since they are unable to take advantage of differentiating their brands through advertising. Further, as price-per-pack rises, profit margins increase because total tax as a percentage of price falls. The freeing up of cash goes toward shareholder dividends, where, in the past, it might have been plowed back into product development. Counterfeiting and black market smuggling have also picked up, putting cigarettes—usually without warning labels—into the hands of smokers all over the world who are willing to break the law for cheaper, tax-free smokes.

But there’s more to plain packaging than mere economics. Back in the bad old days, advertising linked smoking to lifestyles and aspirations. Tobacco companies groomed brands to cultivate the mystique of the smoker as liberated woman, urban hipster, rugged cowboy, or the cosmopolitan athlete (as in the Camel ad above). Consumers became conditioned to recognize their preferred brand among others on the store shelf by its skillful packaging design, a complex interplay of color, shapes, and typefaces.

Then came the 1964 US Surgeon General’s report on the public health hazards of smoking. One year later, Congress introduced the Federal Cigarette Labeling and Advertising Act of 1965 and the Public Health Cigarette Smoking Act of 1969. This legislation banned all smoking advertising in print and broadcast media and introduced the cigarette pack warning label. By the 1990s, New Zealand, Australia, and Canada led the way in adopting plain packaging with the European Union and the United Kingdom following over the next decade. Plain packaging seems poised to invade the Asian tobacco market in the near future.

For now, American tobacco sellers have been able to sidestep plain packaging. In 2011, Reynolds American and Lorillard won a suit against the FDA, arguing that labels requiring graphic images of cancerous lungs would have violated these companies’ free speech rights. These same tobacco giants are back in the news, challenging the FDA over its requirement that the agency be notified whenever a manufacturer wants to modify product labels. The companies contend that having to submit even minor color changes to the FDA’s notice-and-comment rulemaking process impedes and restricts commerce and free speech. Unlike their European counterparts, American tobacco companies can still prevail on matters of brand identity as long as they do so under the First Amendment protections.

Back across the Atlantic, one UK tobacco executive also invoked rights, saying “We have a fundamental right to differentiate our brands from those of the competitors.” The rights referred to in this case are upheld by law, specifically the World Trade Organization’s Article 20 of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) which states, “The use of a trademark in the course of trade shall not be unjustifiably encumbered by special requirements, such as use with another trademark, use in a special form or use in a manner detrimental to its capability to distinguish the goods or services of one undertaking from those of other undertakings.” By this standard, plain packaging encumbers trade by imposing restrictions that change not the product itself but how the product is perceived in the consumer’s mind. Plain packaging tears down the intangibles of brand identify, that is, the decades of impressions that brand has accumulated.

Brand differentiation is a vital part of every business that sells consumer goods. Being neither durable goods nor endlessly renewable, cigarettes must be positioned by marketers to be distinctive in other, more transient, ways, namely in the marketplace of consumer perceptions or aspirations. These properties can only be endowed by branding.

One EU economist noted that intellectual property protections have been set aside in the past in cases of national security or public morals, but that plain packaging opens up the possibility of new interpretations and an expansion of government jurisdiction. “This is going to set a precedent,” said Fredrik Erixon, director of the European Centre for International Political Economy. “What we’re talking about here is the extent to which a government actually can deny a company the right to communicate its own trademark, to distinguish its own goods from other goods.”

The property of a product to be distinguished by consumers—its capacity for brand recognition—is something that companies zealously cultivate and protect. Branding works through its own idiom: colors, shapes, typefaces, slogans, all of which work together to create a statement about the product and its capacity to speak to and for the consumer. Of course, we should probably not allow this discussion to take a Mandevillean turn, extolling the private vice of smoking in the service of the public benefits of well-crafted, free expression. Still, the rise of plain packaging laws probes that tender spot between public health and private action—and where the government fits in.

Leann Davis Alspaugh is managing editor of The Hedgehog Review.

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The Hedgehog’s Array: April 17, 2015

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Noteworthy reads from the last week:

“Creative Accounting,” Michelle Dean
“Along with the long hours alone and the creeping madness, one of the questionable benefits of the writing life is that you are self-employed. This makes tax time an extra-special delight.”

“eBay and the Historical Imagination,” John Lardas Modern
“When I think of eBay, I think of Walter Benjamin and his recollection of an auction in Berlin in 1930.”

“All God’s Creatures,” Susan Harlan
“To enter the Creation Museum and Taxidermy Hall of Fame (and the Antique Tool Museum), I walked down a flight of stairs into an underground lair that was guarded by an enormous armored knight.”

“Track and Yield,” Julia Lipscomb
“The internet is whatever we want. There is room for all kinds of different webs, different internets. If you are a person who is interested in independence and serendipity, then what you need to do is support creators.”

“The Vampire Virtuoso? Paganini’s Bloodletting Kit Is for Sale,” Rebecca Rego Barry
“In Paris and elsewhere in Europe, Paganini further beguiled the public by sauntering through graveyards and visiting hospitals and autopsy rooms. Clad in his black cape, he would sometimes serenade the dead and the gravely ill.”

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