Author Archives: Susan Simpson

Second Circuit’s Error in Kiobel

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This is kind of petty, and not particularly timely, but the Second Circuit’s decision in Kiobel contained one pretty blatant error I wanted to point out. It’s a minor mistake, and entirely insignificant regarding the outcome of the case, but it is perhaps indicative of a lack of familiarity with the history of the Alien Tort Statute:

Such civil lawsuits, alleging heinous crimes condemned by customary international law, often involve a variety of issues unique to ATS litigation, not least the fact that the events took place abroad and in troubled or chaotic circumstances. The resulting complexity and uncertainty—combined with the fact that juries hearing ATS claims are capable of awarding multibillion-dollar verdicts — has led many defendants to settle ATS claims prior to trial. Thus, our Court has published only nine significant decisions on the ATS since 1980 (seven of the nine coming in the last decade), and the Supreme Court in its entire history has decided only one ATS case.

Although much of this statement is subjectively wrong, the last line is outright false. Sosa was not the first — O’Reilly De Camara v. Brooke, 209 U.S. 45 (1908) was the first case brought under the Alien Tort Statute to make its way to the Supreme Court. Although the case was not particularly significant, it is notable in that it “perhaps implies that an unjustified seizure of an alien’s property in a foreign country by a United States officer would come within it.” See Khedivial Line, S. A. E. v. Seafarers’ Intern. Union, 278 F.2d 49 (2d. Cir. 1960).

The rest of that paragraph from the Kiobel decision is also dubious.

ATS cases “often involve a variety of issues unique to ATS litigation, not least the fact that the events took place abroad and in troubled or chaotic circumstances.” The Second Circuit is abusing the meaning of “unique,” here. Events that took place abroad and in chaotic or troubled circumstances are in fact frequently litigated in US courts, albeit usually involving fact patterns that are different from the typical ATS case.

The resulting complexity and uncertainty—combined with the fact that juries hearing ATS claims are capable of awarding multibillion-dollar verdicts — Juries may be capable of awarding multibillion-dollar verdicts in ATS cases, but that is true for all sorts of cases. The only case the Second Circuit cites to is Karadzic, which was a default judgment. Moreover, a jury decision on the merits in favor of a plaintiff in a corporate defendant case has happened exactly once in any ATS case ever, in Chowdhury v. Worldtel Bangladesh Holding, Ltd., 588 F. Supp.2d 375 (E.D.N.Y. 2008). Just once. That is hardly grounds for invoke the specter of “juries awarding multibillion-dollar verdicts.”

… has led many defendants to settle ATS claims prior to trial. Wait, don’t courts consider it a good thing when cases settle before trial? And wait a second here — “many defendants” is quite a stretch. I am only aware of seven ATS cases ever that resulted in a settlement. I’m willing to assume there are a few out there that I’ve missed, but not many. The Second Circuit itself lists only two. There have been, by an extremely conservative estimate, maybe three hundred ATS cases in total that were “legitimate.” By legitimate, I mean not jail-mail and not filed by obviously crazy people. Of these three hundred or so cases, under a dozen have ever resulted in a settlement. So at the extreme, a mere 3% of ATS cases wind up settling. The average settlement rate for torts in federal courts is around 67%. I therefore find it absolutely ridiculous that the Second Circuit is using the threat that “many defendants settle before trial” as a reason for why the ATS is ‘dangerous’ or ‘unpredictable.’

There are other errors in Kiobel that are more significant, and are legal errors rather than factual ones, but these mischaracterizations are telling. The court was not simply adjudicating the merits of the plaintiffs’ claims — obviously the court found that its fears of what the ATS was capable of doing to be significant enough to include in its opinion. But these fears were based on stilted facts, not on the actual record.

-Susan

Why I Will Never Vote For a Creationist

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Creationism is my political dealbreaker. I have never voted for or supported a candidate that admits to disbelief in the theory of evolution, and I cannot envision a possible scenario in which I ever would. If there was a worst-case situation, and I was forced to choose between a Marxist candidate and a creationist candidate… well, I’d probably choose neither and vote for the Rent Is Too Damn High guy instead.

Actually, I have two political dealbreakers. In addition to creationists, I won’t vote for anyone who believes extraterrestrials have visited earth. This is a dealbreaker for much the same reason creationism is, although it’s less important, as I would probably never vote for the politicians who believe in aliens anyway. (Sorry, Reagan, that might rule you out too.)

But creationism is the dealbreaker that is more commonly invoked, and it has yet to lead me astray.

It’s not that I think creationists are idiots. You don’t have to be an idiot to be a creationist. What you have to be, though, is willing to discard reality in favor of an abstract ideology. Being a creationist is proof that, based purely upon ideological motivations, you are capable of ignoring the overwhelming wealth of evidence that shows the reality of evolution, and instead carefully construct a fantasy version of ‘truth’ out of the few meager scraps of misconstrued data and outright fabrications that creationism has to offer. And, at least for me, that completely disqualifies you from being an elected official.

There has been a bit of a brouhaha today over Christine O’Donnell’s pedantic denial of the First Amendment’s bar on government endorsement of religion. I wish more attention was being given to the underlying context, though, and not the silly sound bites.

O’Donnell was arguing is that public schools ought to be able to teach creationism, and not evolution, that a government institution should be able to pick the creation myth of a particular religion — in this case, generochristian — and force all to learn ‘intelligent design’ instead of modern biology.

During the debate, O’Donnell argued that Coons’ views on teaching of theories other evolution showed that he believes in big-government mandates. [sic]

“Talk about imposing your beliefs on the local schools,” she said. “You’ve just proved how little you know not just about constitutional law but about the theory of evolution.”

In fact, O’Donnell believes that forbidding public schools from endorsing religious philosophies “is a blatant violation of our Constitution. The Supreme Court has always said it is up to the local communities to decide their standards.” This is false, of course, but O’Donnell’s ignorance of constitutional law is just a distraction from my main point, which is the O’Donnell’s willful ignorance of science. But it is worth noting that O’Donnell is now on the record enthusiastically endorsing a theory of Constitutional interpretation that would allow public schools to teach theories of Islamic embryology and astronomy or Vedic science. And

When it comes to O’Donnell’s candidacy, belief in creationism is the least of her problems. But it is a very telling indication of her inability to objectively assess concrete real-world situations and reach a conclusion that is not fundamentally dependent upon abstract convictions.

And, on a smaller scale, those who support O’Donnell are displaying the same sort of willful blindness as are creationists. The prevailing conservative ideology is that she is the Tea Party Candidate, the true conservative; that she would be a wise statesmen who could help create a government based on sound conservative principles of governance. And, because of that ideological meme, a disturbing proportion of conservatives are denying an almost objective reality, or as objective a reality as it ever gets in politics: that O’Donnell is unqualified, not particularly bright, devoid of substantive opinions on government policy, and possesses a record marred by dozens of ethical lapses.

To be fair, all of those attributes are endemic among the political class. But O’Donnell is thin gruel even by that low standard. Support for O’Donnell is not based upon any factual evidence of her specific abilities as a politician, but upon the abstract belief that she is the true conservative candidate and therefore qualified to be senator.

-Susan

Polygamy, the Constitution, and Reality TV

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As a general rule, it is inadvisable to go on to a talk show or reality tv show to discuss your criminal activities. You might think this would be obvious advice, but you would be wrong.

Still, I was surprised to see that TLC was coming out with a new show called “Sister Wives,” which is essentially the reality show version of Big Love. Polygamy is of course illegal in Utah, where the series is filmed, as well as in all other U.S. jurisdictions. And, predictably, the police are now investigating the family for possible charges of bigamy and adultery.

Utah’s bigamy statute provides that

“[a] person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.”  Utah Code Ann. § 76-7-101 (2003).

Not to mention, just four years ago in 2006, the Supreme Court of Utah rejected a barrage of Constitutional and statutory challenges to the statute, in State v. Holm:

Holm argues that his conviction under the “purports to marry” prong of the bigamy statute was improper as a matter of statutory interpretation.   Specifically, Holm argues that he did not “purport to marry” Ruth Stubbs, as that phrase is used in the bigamy statute, because the word “marry” in subsection 76-7-101(1) refers only to legal marriage and neither Holm nor Stubbs contemplated that the religious ceremony solemnizing their relationship would entitle them to any of the legal benefits attendant to state-sanctioned matrimony.  Second, Holm argues that his conviction under the bigamy statute was unconstitutional as applied in this case because it unduly infringes upon his right to practice his religion, as guaranteed by our state constitution.   Third, Holm argues that his conviction under the bigamy statute was unconstitutional under the federal constitution. …

We reject each of these arguments.

So why, then, did Kody Brown and his wives agree to go on the show on the first place?

The family does not seem to be an obvious bunch of dumbasses, which is generally my first guess when it comes to this sort of thing. However, while I would not rule that possibility out entirely, given the context of the show, I wonder if the family was motivated, at least in part, not in spite of the fact that there was a risk of prosecution, but because of it. Their stated reason for agreeing to star on Sister Wives is to raise awareness of the polygamous lifestyle, and it is not a far leap from there to wonder if perhaps they also hope to de-criminalize polygamy by bringing a favorable test case before the courts.

If so, that is a bold and risky move to make. Bigamy is a felony that is punishable by up to five years in prison, and so far, no court has ever found that laws criminalizing bigamy are not constitutionally enforceable.

Still, bigamy prosecutions are rare, and prosecutions of polygamous individuals are rarer still. And, apparently, all prior polygamy prosecutions have involved allegations of abuse or other improper activity. If the Brown family does end up facing prosecution, the case might very well end up being a constitutional landmark.

It turns out the GW Law professor Jonathan Turley has gotten involved in the case, and is lead counsel for the family. Turley’s take on the case is pretty much the same as my own:

The use of this statute to prosecute the Browns would be in my view unconstitutional. It would also end a long-standing policy to confine prosecutions to those who abuse children or commit such crimes as fraud. We are confident that the authorities will find no such criminal conduct in this case and we intend to cooperate to the fullest in resolving any such questions from the State. I hope that the prosecutors will recognize that this would be bad criminal case making bad criminal law. It is, after all, a television show and there is no need to move the matter from the television guide to the criminal docket.

Whether it is based on First Amendment religious freedoms, or on freedom of association grounds, or (most likely) Lawrence-style due process protections, criminal prosecution of polygamy is likely not sustainable under the federal Constitution. I suspect that the current Supreme Court would have a very hard time finding prosecution of the Brown family to be permissible — even the faction that dissented in Lawrence might now be inclined to accept its precedential value, albeit grudgingly.

Besides, if there was ever the perfect defendant for testing the constitutionality of criminalizing polygamy, the Browns are it. I actually watched an episode of Sister Wives last night, and it was primarily remarkable for how utterly banal it was. If it wasn’t for the sub-plot involving Kody Brown taking a fourth wife, the show would be so lacking in material that it probably wouldn’t be able to exist. I mean this in the nicest way possible, but the family is super boring. In a lot of ways, it reminded me of another TLC show, 18 and Counting, about the infamous Duggars. While temporarily intriguing for the gawking factor, both shows very quickly devolve into utterly trivial depiction of average home life.

And Sister Wives, with its mere 1:4 adult-to-kid ratio, can’t even come close to matching the logistical ingenuity displayed by the Duggars, who face a more daunting 1:10 ratio. In fact, with their incredible feats of organization and their eerily unflagging cheeriness, the Duggars seem far more alien to mainstream American life than the Browns ever could.

-Susan

Kitten Tricks: A Lesson for Cats on How to Make Your Human Give You Treats

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The commonly held belief that cats are incapable of learning tricks is nothing but vile propaganda espoused by the corrupt canine lobby. Cats are plenty good at tricks — they just refuse to pollute the free market by providing their services for free. While dogs advocate for nanny-state policies by doing tricks on command in the expectation of receiving welfare benefits at some point in the future, cats will do tricks only when they know that they will be immediately and satisfactorily rewarded for it — i.e., for every trick they do, they better see some food. Cats do not perform on credit.

Because the internet already has plenty of blog posts about the law, but is almost entirely lacking in pointless cat videos, I thought that I might help correct this deficiency by forgoing legal commentary for the day in favor of posting a film clip of Ragnarok doing some tricks.

Ragnarok’s first birthday is sometime this month. Back in December of last year, he was found all alone on a soccer field in Athens, GA, nothing but a starving, smelly, trash-covered kitten, and only a couple months old. Twelve pounds and ten months later, he is not really a kitten anymore, but he still has not learned to meow. Although he can squeak louder than just about any cat I’ve ever met.

Continue reading →

Gary Bolton is MIA, but the GT200 is Still in Action

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Back in June, the London Police raided Global Technical, Ltd. — the maker of the GT200 fake bomb detector — as well as two other companies with similar product lines. Since then, however, there have been no further updates either on the investigation or on the activity of Gary Bolton, the officer of Global Technical.

Unfortunately, while Mr. Bolton has gone quiet, the GT200 is still out there on the market. Despite being warned by the UK about the fraudulent bomb detectors, Mexican authorities are still buying the devices, and still believe in their magical narcotic and drug detection abilities.

A friend of mine helped me with translating a couple articles that discuss the GT200, and sadly, neither of them are even slightly critical or suspicious about the GT200’s alleged abilities.

See here:

Dozens of Victorenses who were visiting GranD Campestre (the local mall) were surprised not by the presence of a large group of soldiers, but by the maneuvers they were doing.

Some curious people asked what it was about.

It turns out the military was putting to use in that area a modern detecting device.

It’s the GT200, which, with a long antenna and an inserted card, located cocaine, weapons, gunpowder, marijuana just by holding it near the suspicious vehicle.

And also here, describing how Querétaro’s government has completely drunk the GT200 Kool-Aid:

The Secretary of Citizen Safety in the state of Querétaro is acquiring armored vehicles, vehicles with video surveillance equipment, and the GT200, which, he says “is an instrument used by other national organizations, which allows us to detect at a distance possible explosives, corpses, weaponry, ammunition; it’s sophisticated and it works at great distances.”

Sigh.

-Susan

America: The Only Nation That Requires Its Soldiers to Lie

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In light of today’s Senate vote, which failed to overcome the Republican filibuster to prevent a chance to consider a bill that would provide the President and Department of Defense with the option of maybe ending Don’t Ask Don’t Tell, I present the following lists without further comment.

Countries That Allow Gays to Serve in the Military
Albania
Argentina
Australia
Austria
Belgium
Canada
Colombia
Czech Republic
Denmark
Estonia
Finland
France
Germany
Ireland
Israel
Italy
Lithuania
Luxembourg
Malta
The Netherlands
New Zealand
Norway
Peru
Philippines
Poland
Romania
Russia
Slovenia
South Africa
Spain
Sweden
Switzerland
Taiwan
United Kingdom
Uruguay

Countries That Have Allowed Gays To Serve in the Military and Ended Up Regretting It
None

Countries That Don’t Allow Gays To Serve in the Military
Cuba
China
Egypt
Greece
Iran
Jamaica
North Korea
Pakistan
Saudi Arabia
Serbia
Singapore
South Korea
Syria
Turkey
Venezuela
Yemen

Countries That Allow Gays In The Military, So Long As They Obsessively Disguise the Truth About Their Lives
United States

-Susan

Corporate Participation in International Law: Some Historical Examples

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It has probably become apparent by now that the idea that corporations are noncognizable under international law is one that irritates me to no end. There is, obviously, a great deal of unsettled law out there regarding exactly how liability for violations of international law accrues to non-state entities. But corporations have played a vital role in the development of international law for just about as long as “international law” can be said to have existed, and there is no historical basis for the idea that corporations cannot, as a matter of law, be a participant in or violator of international law.

At some point I will write some more on the subject, but for now, I want to at least throw some links up that give some historical examples. The Transnational Corporation in History: Lessons for Today? is a highly recommended starting point. It gives a good overview of how the legal character of corporations has developed, and how the private/public distinction has always been unclear, oftentimes deliberately so:

Corporations and states are commonly represented as having an oppositional relationship. Corporations represent the private; states represent the public. Corporations represent the efficient, the natural, and the spontaneous; states represent the inefficient and the contrived. The ascendancy of the corporation means the decline of the state. But these commonly held views are ahistorical and tend to ignore the complex relationships between states and corporations. Modern incorporation is simply a matter of fulfilling formal registration requirements. There are few surviving remnants of the old notion that incorporation is a privilege conferred by the state. This Article aims to redress the balance somewhat by telling aspects of the history of the corporate form that have been obscured by modern forms of incorporation and modern conceptions of the public and the private. In a modest way this Article intends to show just how recent the public/private paradigm actually is and how selectively such concepts have been applied.

…

Compared with the French trading companies generally, the English and Dutch companies were considered to be much more independent and able to operate at arms length from their respective governments. The agents of the Dutch and English companies were regarded as employees and servants of groups of merchants, rather than the subordinates of their governments. The British considered themselves traders first and territorial rulers second. Of course, the proper mix of the East India Company’s functions was contested, tended to be in the eye of the beholder, and changed dramatically over the period of the company’s existence.

And how questions over the status of corporation under international law are not new:

The British East India Company certainly took advantage of its ambiguous status—successfully emphasizing its sovereign powers when it wished to avoid contractual debts to local rulers, protesting to the Royal Navy that its status would be reduced in the eyes of the locals if it had to acknowledge the superiority of the British naval fleet, and all the time relying for its trading advantage on the might of British naval power and on the calculated and limited use of force. It charged merchants fees for safe passage and was able to do so as an exercise of its monopoly and sovereign powers. It was graphically and finally reminded of its subordinate status, however, when Queen Victoria took over from the company in 1858. The company had survived in various guises and with mixed public and private motives for 250 years.

But throughout the 18th and 19th centuries, corporations were assumed to be competent at conducting activities that, today, we generally believe only a true sovereign could do. Corporations could start wars, engage in diplomacy, claim new territories, and enter into international agreements. Treaties between corporations and state or state-like entities flourished during this time period, i.e., the treaty between the Dutch East India Company and the Ali Raja, the Treaty of Giyanti, and the Treaty of Allahabad. Some treaties, such as the treaty between the British East India Company and nascent Singapore, lead to the creation of what would eventually become modern day nation states.

Also worth checking out is this 1769 letter, An Enquiry Into the Rights of the East India Company of Making War and Peace and of Possessing Their Territorial Acquisitions Without the Participation or Inspection of the British Government, which gives a good example of how, even then, people were confused about how sovereign a corporation could be, when there was no “official” grant of sovereignty.

I am not trying to say that the role of corporations in international law is crystal clear — it is obviously not. But the idea that corporations are unrecognizable under international law, and that states can use the corporate form to immunize the profits its citizens have made from engaging in violations of international law, is an extremely modern one, and in its own way is a very radical idea.

-Susan

Corporate Human Rights Abuses For Fun and Profit

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In light of the Second Circuit’s decision in Kiobel v. Royal Dutch Petroleum, here is a business plan for all corporate entities that would like to maximize profits for their shareholders. Although theoretically any corporation could implement this business plan, it is recommended primarily for companies that have less invested in their branding, or for companies that are better able to insulate their parent companies from any negative public relations fall outs. For instance, producers of fungible goods like diamonds, oil, and bananas should pay particularly close attention to the following.

Step 1: Create a Subsidiary organized under the laws of Randomcountryastan, a third world nation with a weak and relatively ineffectual government, and which is not particularly concerned about human rights abuses.

Step 2: With the help of Randomcountryastan’s government, enslave a couple thousand members of the nation’s undercaste. Make sure that children are not exempt from this enslavement. If any of your new “employees” resist this arrangement, beat them up, and maybe kill a few for good measure.

Step 3: Make sure any officers of Subsidiary are immune from U.S. jurisdiction. This is not actually all that important for the corporation’s purposes, but it will probably be easier to find people to agree to be officers if the U.S. has no personal jurisdiction over them.

Step 4: Use your slave labor to make extra cheap widgets. As a bonus measure, obtain the right to mine Randomcountryastan’s natural resources at sub-market rates by bribing the appropriate government officials. Use those resources to make your widgets.

Step 5: Sell the widgets to Parent company at an extremely attractive price. Parent can then retail them to consumers outside of Randomcountryastan, with a large mark up.

Step 6: Hire really good lawyers to structure these transactions, as well as Subsidiary’s incorporation, so as to make sure there is no paper trail connecting any U.S. officer/director of Parent to personal knowledge of Subsidiary’s use of slavery to make widgets. Also make sure that Parent and Subsidiary observe all corporate formalities.

Step 7: Profit!

-Susan

Christine O’Donnell: Pros and Cons

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Christine O’Donnell is the Republican candidate in Delaware’s Senate race. There are a lot of strong feelings out there about O’Donnell’s candidacy, so I thought I would weigh in with an objective analysis of the pros and cons regarding her suitability for being elected Senator.

Pros:

  • Political platform includes the belief that “[v]oting to spend money we don’t have has become the appealing option for too many politicians. The men and women of America know this is not sustainable.”

Cons:

  • Political platform also includes the belief that “every individual has a unique, unrepeatable preciousness, and that our fiscal policy should be one that encourages and empowers the individual creativity.”
  • Has never articulated any concrete fiscal policy positions, or advocated a specific plan of action she would support in order to reform the federal government’s spending or taxing.
  • Campaigned on MTV to end the epidemic of masturbation that is destroying our country.
  • Is a young earth creationist that advocates teaching creationism rather than Darwinism in public schools.
  • First became involved in politics while working for an anti-pornography crusade.
  • Has a lien filed against her by the IRS for unpaid income taxes.
  • Uses campaign funds to pay her rent and personal expenses.
  • Believes opponents are hiding in her bushes at night to spy on her.
  • Lied about her home being foreclosed on.
  • Lied about receiving a college degree.
  • Lied in court filings about being prevented from attending Princeton for a Master’s degree, when she did not even have an undergraduate degree at the time.
  • Thinks that lying is always wrong, even when it is to Nazis for the purpose of saving Jews you have hidden in your house.
  • Supports the “ex-gay” movement.
  • Uses phrases like “get your man-pants on.”
  • Has failed to pay past campaign debts, while continuing to divert all campaign funds towards spending on the current campaign.
  • Has no savings, no investments, owns no property, and reported receiving only $5,800 in income in the last year.

But she believes in fiscal responsibility, even if she doesn’t practice it, so that makes her an ideal politician, right? Right?

I have mixed feelings about the Tea Party, but one thing that always kept me hopeful it would amount to something useful was the general resistance among the Tea Party infrastructure, such as it is, to get drawn into the ‘culture wars.’ But despite all their claims about a fiscal policy focus, they still wind up choosing candidates like O’Donnell — who are above all social conservatives first, and fiscal conservatives only incidentally. Of course, in O’Donnell’s world, it’s the same thing:

“As I was in Washington, D.C., advocating for the social issues, I realized that they’re all connected, that your approach to protecting the human dignity and protecting the individual definitely reflects in your fiscal policy, and that’s why I’m a fiscal conservative.”

-Susan

Market Failures and Dried Apricots

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I’ve always liked dried apricots, but the texture of them is, admittedly, kind of disturbing to me. Not to mention their color — that neon-tinged ocher was never meant to be seen in nature. But they make for excellent trail mix and they taste pretty okay, so I’ve learned to ignore the unsettling chewy texture and bulbous appearance.

And then last week I was introduced to sulfur-free dried apricots. And I am never going back.

As it turns out, the dried apricots that are commonly available in stores get their Frankenstein-like attributes from being treated with sulfur dioxide. Unfortunately, this treatment has the mild side effect of completely ruining the flavor. In contrast, sulfur-free dried apricots look kind of like flattened and freeze-dried termites, but they are approximately a hundred times tastier. As a friend of mine put it, “organic dried apricots are nature’s Sour Patch Kids.” They really are. Go buy some now, you won’t regret it.

So why has it taken me this long to discover how much better sulfur-free dried fruit is? Well, probably because I’m an indiscriminate omnivore, and when I see something labeled as “organic” I tend to interpret it as “overly expensive for no justifiable reason.” But it’s also because sulfur-free dried apricots are really hard to find. Grocery stores tend to only carry the sulfur-treated variety — and when placed side by side on a super market shelf, I can see why the sulfured monstrosities might look more superficially appealing to a potential customer. At any rate, stores seem to be inclined to carry the less tasty version over the organic kind, probably in order to appeal to shoppers who are basing their purchase on appearance. Compare for yourself:

Dried apricots that have been treated with sulfur dioxide

Dried apricots that do not taste like ass

Dried apricots are not the only fruit where consumers are forced to settle for pretty at the expense of tasty. The tomato is probably the most notorious example of this — supermarket shelves are lined with bright, round, shiny red tomatoes that seem to come straight from central casting. But when it comes to taste, comparing these Hollywood-perfect tomatoes with a heirloom variety, such as UglyRipe, is kind of like comparing Natty Light with a microbrew. The average tomato available at the supermarket is simply a bland and watery imitation of the real thing.

In the case of tomatoes, though, there is at least a strong argument to be made that the government is to blame for the lesser availability of the ugly-but-tasty varieties. But when it comes to dried apricots, the specter of government regulation cannot be as easily invoked, to explain why the sulfur-treated apricots are widely available and the unprettified kind are so hard to find. True, drying fruit with the help of sulfur dioxide is cheap, but my guess is that the real appeal is the resulting appearance. People just aren’t going to venture out and try and entirely new food type when the appearance is so unsettling. I mean, would I have ever tried the non-sulfur kind on my own, if a friend hadn’t bought some for me to try? Probably not. Because they’re labeled organic, and I don’t swing that way. But also because there is nothing particularly compelling about the sight of a bag of organic dried apricots, which could in fact be confused with a bag of potpourri.

So consumers don’t know enough to go for non-sulfur treated dried fruits. And stores — except for stores that specialize in catering to yuppies, like Trader Joe’s — have little to gain from trying to offer consumers an ugly looking version of a commonly available product. Which means we’re stuck eating a less-good version of dried apricots, unless and until consumers somehow discover en masse how much better the organic kind can be.

-Susan