I suppose that most people who see Taco Bell's new fourth meal campaign just get reminded that they should visit Taco Bell. Or remember how happy they are not to have to go to Taco Bell anymore. And in reality, that's probably Taco Bell's real purpose in running the ads. Ads have to say something, I guess. They might as well advertise a fourth meal, in between dinner and breakfast. Simple. To that extent, my only problem is that it really should be a Hobbit's second breakfast, which I definitely sometimes indulge in.

But it seems to me that the ad campaign also demonstrates a point that's been in the news recently - that fast food producers, and food producers in general, have been forced to find more and more aggressive ways to fuel profits. They tried supersizing. That worked, but got them in trouble. They've tried upgrading. Those supermarket roast chickens might be tasty, but they're also much better for the bottom line than raw chicken. And that's worked, but it's not really available to Taco Bell and its like.

Further, the simplest form of pure growth isn't really an option. All the producers feel like they're bumping up against natural limits in the market - there just aren't that many more people who can be persuaded to visit McDonald's, or Taco Bell, or whatever.

The startling answer that Taco Bell has come up with to this problem is somewhere in between supersizing, and persuading people to come to Taco Bell. Invent an additional meal, trying to draw people who might open a bag of chips at night into a restaurant for a richer, far more profitable (to Taco Bell) experience.

It's really rather clever. But what's interesting to me is that if this plan is even remotely successful, it's a health disaster. Consuming 400-600 more, entirely superfluous, calories late at night even once a week is a problem. And the target audience would probably not be limited to such a minor snack. Eating only 600 calories at Taco Bell is something of a challenge.

Obviously, I'm not in favor of any restrictions on their advertising, even if I thought it would cause a wave of children asking for fourth meals. But to me, there are two important implications. The first is that we're reaching some kind of plateau where people have stuffed themselves as completely as possible at the meals they choose to have. That's part of the explanation for the recent softness in Chili's profits. And the second is that our food producers are completely indominatable in finding news ways to increase the calories we consume. There will be no natural leveling off in our waist lines. Not so long as Taco Bell can help it.

For someone getting ready to work at a law firm, and thus necessarily eat out more often, this is not a pleasant realisation. The question for another time is what we all can do about it. And how our food people can be persuaded to change their minds.

[The Supreme Court] has applied the antitrust laws to the press notwithstanding the guarantees of freedom of speech. If it has the intellectual competence to work its way through such complex issues, then why is it utterly unable to apply the identical conceptual scheme to various forms of government regulation that are challenged on the grounds that they interfere with the liberty of contract or take private property, by way of coercive regualtion, without just compensation? ... Every day, under the Sherman Act, the Clayton Act, the Telecommunications Act, and so on down the line, the Supreme Court routinely analyzes trade and business practices far more complex than the pathetic price-fixing scheme in Nebbia [v. New York]. The Court's flight to low-level rational basis review based on its own institutional incompetence lacks any firm intellectual foundation. Quite simply, it is not possible to marry any conception of limited constitutional governance with large doses of judicial passivity. The blunt truth is, the lower the Court's standard of judicial review, the weaker its intellectual performance. How could hard cases be decided correctly once the standard of constitutionality allows bad arguments to win, so long as uttered with a straight face?

After a DNA test, charges are being dropped against Karr, the accused killer of JonBenet Ramsey. Maybe my barber knew a thing or two.

It is a truth universally acknowledged that as another round of 1Ls descend on their respective schools, they will soon enough confront the question of whether a quasi-medicated epileptic owes a duty not to crash his car into buildings during his fits. the case is Hammontree v. Jenner, which PG and I argued about on our respective blogs when law school started. Here is her post, here is mine.

PG resurrects our disagreement today:

Surely there is far more utility to society at large, and not just to the individual epileptic, when someone with a well-controlled condition is a highly functional member of that society, rather than one who is hobbled by the fear that the condition might nonetheless rear up unexpectedly, and that if it does so, he should be strictly liable for any damage that results. Negligence is a different matter, and I'm inclined to apply strict liability to individuals only in the criminal law, and that only when the activity is of questionable social value (e.g., extra-marital sex with or the sale of alcohol to people who turn out to be under the proper age).

Apprenticeship is one of my old, pet, topics. Here's a post from a long time ago about apprenticeship and tailoring. And I'm glad to note that Mr. Mahon over at English Cut, whom I reference in that post, has since announced not only a search for an apprentice, but a new project by which he hopes to set up a whole workshop in the English countryside. Bespoke shoemaker, coatmaker, shirtmaker, tailor, and various apprentices - it's like something that's escaped from a sort of Jeffersonian pastoral ideal.

My own experience of apprenticeship so far is as positive as I thought it would be. What is clerking, after all, but apprenticing? You get to bother a vastly more experienced and able lawyer than yourself for an entire year. And what does he get out of it? Sure, some (hopefully) able help. But also all kinds of headaches. A steep learning curve. Possibly divergent personalities every single year. Smart-asses who think more of themselves than they ought (ehem).

My basic sense is that I'm not sure the judge is getting value for money. The commercial tailor, one presumes, starts making money off his apprentice fairly soon. Maybe a year into the enterprise, let's say. But he's got the apprentice for many years. So once the initial year of investment is over, the master reaps all the benefits. The same is true of law firms, only moreso. There's no mystery why my future bosses hired me, and it has everything to do with profit. Which is a fine, and plausible reason, and one I hope to exploit in my own favor some day.

But most judges hand off their now slightly less stupid clerks to law firms before any kind of turning point has been reached. Maybe they got a month of really excellent help out of them, and even that would have been better done by a career clerk. In fact, it's fairly clear to me that to the extent judges are dedicated to producing highly reasoned, objectively correct, opinions, (especially at my own trial level, with large records that are often dispositive) clerks make more work than they save, or, at best, save less work than someone competent would save. The extraordinary experience of clerking appears to depend largely on the altruism of the judiciary, who thus far appear willing to absorb the price of sub-ideal help in the hope of producing better lawyers later on, many of whom develop only to bedevil them with obscure motion practice learned during the clerkship.

There are other explanations, of course. It could be that judges don't care about producing good opinions. They just want fast opinions with as little work as possible, and clerks do provide value there. But I think that's nonsense, and certainly as it applies to the judges I worked for and observed. And maybe even with our headaches, we're still somehow better than career or long-term clerks. I don't see how that could be true, though. If I'm right about our value, than everyone complaining about law clerks, especially at the Supreme Court, is wrong, and or at least partly mistaken. The problem with clerks isn't their influence, but that they sap the judge's energy, which could be better used elsewhere.

But any other former clerks out there who want to comment are welcome. Why, exactly, were we indulged? And if you were appointed to be a judge, what would you do?

UPDATE: I have some more thoughts here.