an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
You’ve just finished dinner at a nice restaurant and you order a decaf coffee instead of regular so that you won’t have trouble falling asleep. A few minutes later, your server brings you a steaming cup of Joe. You want to drink it, but you’re worried it might have caffeine. At this point, I normally ask something like “Are you sure this is decaffeinated?”
But my friend (and newly tenured colleague) Yair Listokin tells me that Oprah suggests that we ask instead: “Is this regular coffee?” Or, “Are you sure this is regular coffee?”
It’s not fool proof, but asking “is it regular” will let you know whether the waiter is willing to say “yes” to any question. Framing the question doesn’t work if the restaurant follows the “after 8 p.m. or so, all the coffee is decaf” convention.
Asking the question this way (implying the reverse of what you actually want) also reminds me of a wonderful moment in the movie Chinatown where Jack Nicholson’s character (Gittes) asks the director (Palmer) of an old folks “rest home”:
Gittes: Do you accept anyone of the Jewish persuasion?
Palmer (very embarrassed): I’m sorry. We don’t.
Gittes (smoothly): Don’t be sorry, neither does Dad. Wanted to make sure though, didn’t we, honey?
Both of these questions are examples of my favorite creativity tool – flipping (which I’ve written about here and especially here). And in my warped mind, Oprah’s super-cool coffee question is related to these amazing Sunderband Tiger masks:
As explained on this funky “Man-eaters” page, the idea of flipping the mask around was an attempt to reduce tiger attacks:
This simple, yet strange idea was first tested in 1986. Tigers almost always attack from the rear, so the thought was a mask worn on the back of the head would confuse the tigers enough to prevent attacks.
The Indian government issued groups of workers with masks, and surprisingly, the idea worked. After a year no attacks had been reported upon those with masks, whilst thirty people not using the new system had been attacked and killed. It was noted that tigers followed some mask wearers for many hours, but without attack. In one later fatal attack on a mask wearer the tiger attacked from the side rather than the rear.
Villagers were always pessimistic about the long term effectiveness of the practice, saying that the tiger would soon learn the trick and attacks resume. Unfortunately, they were correct and though the system is still used, it is with decreasing effectiveness.
The civil rights scholar in me can’t help but notice that the complexion of the masks in these images seems notably lighter than the complexion of the people wearing the masks (suggesting a flipping of race as well as a flipping of the side of the head on which the mask is worn). This lightening might innocently be explained by fixed costs of masks production, but more insidious explanations concerning the preferences of the mask wearers or of the tigers are also possible.
The takeaway is that the potential for the creative use of flipping abounds all around us.