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Fighter jets and birth defects: Recent journalism about stuff I learned in law school 4 min read

Fighter jets and birth defects: Recent journalism about stuff I learned in law school

By Cary Littlejohn
Fighter jets and birth defects: Recent journalism about stuff I learned in law school Post image

I want more than anything to fly in a fighter jet. Sometimes I think that it might be worth it to chase fame and fortune just so I might get that chance one day, because that seems to be a thing that celebrities get to do. See, for example, the hilarious Bill Engvall, of Blue Collar Comedy Tour fame, as he discusses the time he got to fly with the Air Force Thunderbirds. More recently, the guys from Dude Perfect, of trick shots on social media fame, got to do the same with the Navy’s Blue Angels (the whole video is fun, but they go up in the jets around minute 14:00 if you want to jump ahead).

Because of this long-held desire to zip around the skies, I was particularly interested in a seminal contracts case taught in the first year of law school. As you could tell from my previous posts, I came of age in the ‘90s; McDonald’s Monopoly Game and the myriad computer games I mentioned pretty much pegs me as a kid of the ‘90s. And that’s why the case of Leonard v. PepsiCo, Inc. resonated with me; I remembered the ad campaign that brought about this surreal case.

Here’s the short version of the story, so as not to step on my recommended link: A lawsuit arose out of a Pepsi promotional campaign for Pepsi Points, points accumulated from buying Pepsi, which allowed the points to be redeemed for merchandise. The commercial that prompted the lawsuit depicts a teenage boy getting ready for school, dressed in merchandise from the promotion, and lets the viewer know how much each item cost in Pepsi Points. Then, the commercial shows the boy arriving at school via a Harrier fighter jet, and the price in Pepsi Points is 7 million points. You can watch in all its ‘90s glory here:

Long story short, a literal-minded viewer of that commercial read the rules of the promotion and found out that he could get that jet, if the rules and commercial were taken together as true. When he informed Pepsi, “I’d like my jet, please,” Pepsi probably had a good laugh at his expense before telling him to piss off back to wherever he came from. Likely sensing this might happen, he had a lawyer, and he sued.

In a recent article for WIRED, comedian and actor Matt Parker published an excerpt from his book, Humble Pi: When Math Goes Wrong in the Real World, that used the Leonard v. PepsiCo, Inc. case to illustrate a basic concept: “As humans, we are not good at judging the size of large numbers.” He goes on to explain that because the amount of mathematical concepts that we don’t intuitively understand but nevertheless govern much of our lives is “both incredible and terrifying.” And mistakes, Parker contends, are revealing of just “how far mathematics has let us climb.”

Parker then pivots to another aircraft-related mathematical mistake that’s hard to believe could be real. Come for a story of a soft drink company not wanting to give away a fighter jet for pocket change, stay for the unbelievable story of an under-fueled Boeing 767 that ran out of fuel mid-flight and miraculously didn’t crash due to the skill of a pilot. Read it here:

Bad Math, Pepsi Points, and the Greatest Plane Non-Crash Ever | WIRED

Sticking with the law-school-case-come-to-life theme, another recent story published by Undark, the non-profit digital magazine “exploring the intersection of science and society,” tells the behind-the-scenes tale of one of the most influential Supreme Court cases of all-time. Lawyers and law students alike know the name Daubert (pronounced DAW-burt), as it is the recognized shorthand for the standard by which judges must assess scientific evidence for admissibility. The name comes from the plaintiffs in the Daubert v. Merrell Dow Pharmaceuticals, a toxic tort case alleging that the company’s drug Bendectin, used to treat nausea in pregnant women, caused birth defects. For practicing attorneys, the details of the underlying case have likely been long forgotten; for law students, the case’s procedural history in casebooks never go into the human drama like this article does.  The story begins with a narrative reconstruction of Jason Daubert’s birth, complete with the surprise revelation of a missing forearm bone and three missing fingers. It’s heartbreaking, made even more so by Joyce Daubert’s striking honesty in her fear and revulsion: “‘I felt responsible,’ Joyce said. ‘Because I carried that baby. It was horrible. I just didn’t know if I had what it would take to raise a deformed child.’ For a brief time, Joyce said, she contemplated suicide.”

For all of us, it’s a great piece of contextual journalism, which tackles not only the legal standards but also the medical science as well as telling a deeply human profile of a determined mother and her son. It’s a long story, but author Peter Smith never lingers in the weeds too long; just when you may be tiring of dry, technical medical jargon or legalese, he reminds you of the underlying narrative. And it’s a complicated one. It’s hard to know how to feel about the outcome. The standard it created sounds imminently reasonable, but it also empowers judges to act as amateur scientists—is that a good thing or not? The article wrestles with that question. The human element of the Dauberts only reinforces that ambivalence: After winning at the Supreme Court and elucidating a new standard for all courts to follow, the new standard was applied against them by the lower court, and they never got their trial against Merrell Dow. Was that the right outcome, and does the answer change when one considers the reality that the standard is applied more harshly in civil cases than criminal ones?

Questions like these, and more, are explored in the article, and they represent the thing I so loved about law school — the gray area between the black and white, the unanswerable. But that love didn’t carry over to the actual practice of the law, when real, live humans like the Dauberts are no mere abstractions from a dusty law textbook but your clients. I commend the often unrecognized plaintiffs whose names will never become as common in the legal world as the Dauberts, trying to see justice done by fighting to be heard. I commend my lawyer colleagues who practice diligently in the face of such moral discomfort and remember the humanity of their clients. And I commend those journalists like Smith trying to close the gap between dry facts and stuffy standards and flesh and blood characters. Read it here:

For Science in the Courts, the Daubert Name Looms Large

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