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January 29, 2008

Maybe Next Time We'll Think Before Law School

"No Other Warranties Expressed or Implied"
By Nate Kurtis

Today, class, we will be discussing legal theory as expressed through modern pop music. While there are many other important topics we could be covering instead, I can’t think of any of them at the moment because I have a song stuck in my head.

It should be clear, I didn’t want it there. I didn’t seek to have this particular piece of pop culture stuck on repeat in my skull. I really had no choice. You see, this particular song has been stalking me. Yes, you read that correctly: it is stalking me! Every time my alarm clock radio has gone off this past week, this song has been playing! Each time I have been in a car or cab in the past week, this song was on the radio! Whatever store or restaurant I walked into this week, this song was piped in over the loudspeakers!

The song in question: “Before He Cheats” by Carrie Underwood.

Since the deadline for submitting this column is coming up and whenever I try to think up something substantive to discuss all I hear is “maybe next time he’ll think before he cheats,” we will have to contend ourselves with discussing this song as best we can.

So, here goes:

…However, before we can really dive into it, we need to make sure everyone is on the same page. For those of you who have been spared my fate, and so remain mercifully unfamiliar with this song, the real operative bit is the chorus which goes something like:

“And he don’t know... OH!
That I dug my key into the side of his
Pretty little souped up four wheel drive,
Carved my name into his leather seat,
I took a Louisville slugger to both head
Slashed a hole in all four tires;
Maybe next time he’ll think before he

First, seeing as this is law school, I should probably point out that her actions in this song likely constitute a tort of some kind. Sure, she would only be on the hook if there was some way to link her to the damage; but the fact that she “Carved [her own] name into his leather seat” might make her easier to finger as the culprit. That, and the fact that, in the music video at least (and, yes, I did look up the music video – if we are going to do this, we might as well do it properly!), she returned his keys in person and in public after trashing his ride, throwing them into the “Fruity little drink” that was purchased because the “bleached-blonde tramp” with whom he was both “slow dancing” and “probably getting frisky … can’t shoot whiskey.”

This point aside, the song can serve as a useful example for more than its simple tale of infidelity and its warning of the hazards of such behavior for innocent motor vehicles in the vicinity. Its internal logic and justifications are not that dissimilar from certain applications of criminal law theory in the modern world.

It must be made clear that the actions this song describes are purely revenge-driven. The narrator does not take any concrete steps to prevent the cheating in question (unless this guy is only able to seal the deal by leveraging his “Pretty little souped up four wheel drive,” which even if true would be less necessary given the speculated level of intoxication of his target), she even discusses its likely occurrence as she details the car-nage. Instead, she works, methodically, to trash his car – straight-up retribution for his unfaithfulness.

That is not to say that she hasn’t rationalized her actions. Indeed, the narrator repeatedly indicates that she hopes her actions will make him “think before he cheats.” Yet even this stated goal is no more than a pretext for her true intention of getting back at him. She makes clear that she is not sticking around in this relationship, so “the next time that he cheats / Oh, you know it won’t be on [her].” But, without her actions getting out to a world-wide audience they will not necessarily decrease the likelihood that her next beau will cheat on her. As for the guy in question, she conjectures that she “might’ve saved a little trouble for the next girl,” but isn’t all that concerned about it, and seeks no guarantees. Other than feeling better about herself, what has the narrator’s conduct really gotten her?

All this is eerily similar to the current application of criminal law theory in court rooms around the country. We have moved away from a system of rehabilitation or deterrence and instead moved closer to a system of straight retribution. One need only watch any episode of Law and Order (warning: if my own grade is any indication, this is NOT a good way to study for Crim. Law!) to hear Jack McCoy lecture some criminal on the error of their ways, or advise a jury to punish said criminal for their conduct. (Indeed, if certain episodes involving murders of cheating spouses are any indication, ADA McCoy would surely try and hold the narrator of this song responsible for her actions against the car.)

Like in the song, no effort is taken to rehabilitate the wrong-doer. Like in the song, other than through a very convoluted causality there isn’t a strong deterrent value offered by this straight up punishment-if-caught system. And, like in the song, the end result is simply to get back at the “guilty” party for what they did.

This doesn’t seem to get us very far.

What we should do about it is unclear. Certainly we all feel that sense of satisfaction when we get back at someone who has wronged us; but then there is a risk of escalation. ‘An eye for an eye makes the whole world blind,’ I am told; and certainly tit-for-tat hasn’t worked very well in the Middle East. Perhaps we should take some time to think about what we are about to do before we seek revenge for its own sake.

And, as for the song, it contains many more as-yet-unplumbed depths. For example, take this selection from the second verse: “Right now, she’s probably saying ‘I’m drunk’ / And he’s thinking that he’s gonna get lucky / Right now, he’s probably dabbing on three dollars worth of that bathroom cologne….” However, instead of diving into a detailed analysis of excessive cologne use –for example, a recent study out of Tel Aviv University indicates that excessive perfume use can be linked to depression – or the implications of intoxication, diminished capacity, and beer goggles on the ‘walk of shame,’ we will leave these topics for you to explore in person during the upcoming Bar Month [See “ Bar Month Begins With A Bang“ on page 4].

Now, if you will excuse me, I need to take a Louisville slugger to my clock radio….

Nate Kurtis is a 3L and Editor in Chief of Res Gestae. Questions, comments, and advice about better songs I can get stuck in my head may be sent to rg@umich.edu.