Law For Food: The law affects what you eat. What you buy to eat affects the law.


The Ethical Treatment of Interns
13 June 2008, 2:37 pm
Filed under: Animals and Animal Products, Ethics of Eating, food politics

I think I get what they’re trying to do here, but it still seems like a bad idea. I guess it’s Publicity Stunt day here at Law for Food. I’ll work on that.

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Mea Culpa: Cowardice and Politics

Readers of this website, if indeed any remain, deserve an explanation, if not an apology, for the long, unannounced, and unjustified hiatus this website has taken. I would like to spend a few words discussing why I stopped writing and where I find myself beginning again. I would like to think that my absence has been due to overwork and to a perhaps unhealthy obsession with the U.S. Presidential races. It is true that I have been both busier and more distracted this term than ever, but the real reason is, I daresay, rather more interesting than that.

I.

I noticed back in November that my writings here, and those thoughts that I found myself wanting to put down, had taken an unexpected turn from food law and policy particularly toward, for instance, community planning and urban design; poverty and subsistence living; feminism and the politics of domestic labor, and I didn’t like where this writing was taking me. I found myself saying in person and thinking about writing here some Unserious Ideas of the sort that No Reasonable Person Thinks. Thinking and writing against the conventional wisdom. I started to think thoughts that I worried were radical. I was worried that I could start sounding like one, or indeed that I could become one, and that following food politics as I had could easily turn my writing on food into a continuous jeremiad against contemporary modes of being and behaving rather than a discussion of law and policy.

In December I experienced, without really knowing it, a certain deeply-ingrained cowardice of thought, and it was that cowardice which has made me stop writing.

Part of it is law school, to be sure. One of my professors joked a few months ago that our law school (which, it must be said, is a rather well-regarded school) is really good at churning out insurance lawyers. Despite its rhetoric about “Making a Difference” we are all far more likely to succeed in the current system than to change that system, and therefore, to the extent that the system is not good, to be part of the problem rather than part of the solution.

Over lox and bagels one Sunday my roommate said much the same thing in a different context, about law school making cowards of us all. Law school teaches us to reflexively support the system. Show me a rule, a law, an institution, and law school has conditioned me to believe that rule, law, or institution does more good than harm. How could it not? The system works. If a law were doing more harm than good, it would be repealed. Law school teaches us to keep shifting in scope — where a policy clearly harms, for instance, a neighborhood, we shift to arguing that an alternative would harm the state. Law school makes us slippery, but it makes us a particular kind of slippery, a kind which supports the existing order in return for prestige and responsibility and a great deal of money.

All of these observations have been observed more cleverly and more convincingly elsewhere. What is bothersome to me is the realization that they could apply to me, and that they could apply unconsciously, insidiously. The choice is rarely so stark as being called into the darkened office of the powerful man and being offered a briefcase of money: that scenario is unsubtle and stupid. The choice is more often whether we will say and do the things that we think are true or right without considering whether they fit neatly into the conventional wisdom and the received order. This is the sort of lesson that we often think applies to teenagers and smoking, for instance, but I see no reason why it fails to apply to adults and professionals.

For me, I was uncomfortable presenting myself as a lawyer, even pseudonymously, who believes that our food system is dysfunctional from top to bottom. Lawyers who want to be taken seriously don’t advocate that people should cook their own meals, in their own kitchens, from food grown in their own gardens and towns and communities. Lawyers who want to be taken seriously don’t challenge the reality that all adults have to work outside the home. We don’t challenge the reality that our economy is built on our inability to say, “I have enough. I don’t need a new car, a new house, a new video game system. I don’t need a television at all.”

Lawyers don’t challenge these realities because there are no clients who represent the interests of having enough. There are no clients in favor of putting away or throwing away the television set and spending that time putting in a garden. The local economy, the family-owned restaurant, the farm, the local manufacture of goods for local consumption — these things do not support the lawyer with his three hundred dollars an hour and his very expensive suit.

II.

I am reading a friend’s copy of Wendell Berry’s excellent collection of essays, Sex, Economy, Freedom, Community and last weekend I came across, in the final and eponymous essay, the following paragraph:

The “conservatives” promote the family as a sort of public icon, but they will not promote the economic integrity of the household or the community, which are the mainstays of family life. Under the sponsorship of “conservative” presidencies, the economy of the modern household, which one required the father to work away from home — a development that was bad enough — now requires the mother to work away from home as well. And this development has the wholehearted endorsement of “liberals,” who see the mother thus forced to spend her days away from her home and children as “liberated” — though nobody has yet seen the fathers thus forced away as “liberated.” Some feminists are thus in the curious position of opposing the mistreatment of women and yet advocating their participation in an economy in which everything is mistreated.

(To be sure, Mr. Berry is making the mistake of assuming that feminists who argue that woman should have the right to work outside the home are also arguing that woman should in fact work outside the home, however I can think of a significant number of feminists make exactly these two arguments, side by side. Mr. Berry’s greater point seems to be that participation in the larger economy opens oneself up to mistreatment, whether one is a man or a woman.)

It seemed to me that Mr. Berry was quite concisely making a point that I had clumsily hoped to make in Feminism v. Locavorism, and I felt suddenly ashamed. I had plowed through the preface to the book, “The Joy of Sales Resistance” with great relish and satisfaction (although I do not quite share Mr. Berry’s distain for hypertext). It is always heart-warming to find an author or a musician with whom one feels kinship, and I felt that in this book. But the further I read the more I realized how cowardly it was of me to have stopped writing here.

III.

I think that as adults, we are inclined to discount the effects of peer pressure as something that only works on children. I think this is because we confuse the term “peer pressure” with the activities being pressured, and once we are no longer of an age that we can be pressured into those activities, we believe that we can no longer be pressured into any activities. We believe we are immune.

Moreover, because we associate peer pressure with teenage vices, we assume that, if an activity is good or at least morally colorable, peer pressure isn’t and can’t be the mechanism that encourages us to engage in the activity. We don’t want to think that we have to be coerced into doing what’s right. If it’s what’s right, of course we were going to do it all along, and not because we were pressured into it.

It gets a dirty name, this kind of pressure, because we are conditioned to see its presence only when its effects are bad, but the pressure has all sorts of effects. It socializes us. It protects us from offending others, and keeps us swimming with the school. I suspect that social pressures do a lot of good in the world in terms of making sure we get along as well as we do.

Wendell Berry again, from the same book:

A conservation effort that concentrates only on the extremes of industrial abuse tends to suggest that the only abuses are the extreme ones when, in fact, the earth is probably suffering more from many small abuses than from a few large ones. By treating the spectacular abuses as exceptional, the powers that be would like to keep us from seeing that the industrial system (capitalist or communist or socialist) is in itself and by necessity of all of its assumptions extremely dangerous and damaging and that it exists to support an extremely dangerous and damaging way of life. The large abuses exist within and because of a pattern of smaller abuses.

You see where this is going. What’s acceptable and unacceptable — the way we’ve been pressured into behaving — has a dark side in the area of consumption, in the way we act in an economy. Nobody wants Exxon-Valdez, but everybody wants to drive their own car. Nobody wants the last manufacturing plant keeping the small town alive to shut down but everybody wants to pay less and less and less for household goods. Nobody wants to work a 70 hour week, but everybody wants a big flat-screen tv in the living room, and surround-sound, and better clothes and a new car for every driver every couple of years, and we want to replace them all cheaply when they break or when something new or different is sold (see, e.g., the early obsoleting of DVD by Blu-Ray, or any of a thousand other consumer goods advertising arms races).

I don’t mean to say that we fail to connect the dots between cheap goods from overseas and crippled local economies. Many people are able to see the causal links, but are unwilling to pay the social costs inherent in changing their consumption habits. And those who insist that we should change those consumption habits are ridiculed as anachronistic, as unrealistic, as overburdened by an embarrassing devotion to the natural world. (See, for instance, the characters portrayed by Jason Schwartzman and Mark Wahlberg in the film “I [Heart] Huckabee’s.”) The notion that we should all stop driving, for instance, is dismissed as unrealistic without an examination of why it is unrealistic.

The dismissal extends, I should add, all the way up to policy decisions on the international financial level. According to economist Ha-Joon Chang, from his fascinating book Bad Samaritans:

“[Proponents of the neo-liberal free-trade agenda] like to present globalization as an inevitable result of relentless developments in technologies of communication and transportation. They like to portray their critics as backward-looking ‘modern-day Luddites’ who ‘fight over who owns which olive tree’ …. It is argued that there is only one way to survive the historic tidal force that is globalization, and that is to put on the one-size-fits-all Golden Straitjacket which virtually all the successful economies have allegedly worn on their way to prosperity.”

IV.

Of course, it is indeed unrealistic to suggest that USians give up their cars and stop buying so much stuff. The system has been stacked against those options, with the result that people who argue for these things come across as radicals. “I live 15 miles from where I work, and in the afternoon I drive my kids between oboe lessons and soccer practice. How can I give up my car? And who has the time, anyway, to buy and prepare local food?”

It’s a real, and valid, question, but it also reveals something of how our choices contribute to the system. The thing is circular: the system which makes unrealistic certain lifestyles is only a system because so many people are already making choices which contribute to it. I emphasize that I am not saying that there is anything wrong, in the abstract, with living 15 miles from where one works, or taking the kids to oboe lessons and soccer practice. I am, however, saying that these decisions have effects which, when aggregated, may and probably do cost more than they benefit.

However the argument that we should choose to limit our participation in “normal” activities is not an argument that people who want to be taken seriously are able to make. It is an argument against not the excesses of our economy but against its ground-state.

This is precisely the sort of argument that feels unseemly for a law-student to make, not only because it is the sort of argument that people don’t take seriously, but also because it runs against the existing order and subverts the conventional wisdom about freedom of trade and lowered transaction costs, about opening borders and the global economy. About, quite possibly, strong property ownership rights being a prerequisite for other human rights. It runs against a lot of things that I tend to believe, actually.

So I stopped writing. And while I would like to say that I stopped writing out of a genuine conflict of values, it seems to me that such a conflict would probably make for some pretty good blogging, and that the conflict wasn’t the real reason to stop writing. I think that the real reason was that, as a law student, and as someone who was, and is, looking for work in the legal community, I did not believe that I could continue to pursue this line of thinking and questioning, even in private, even under a false name like this.

V.

The upshot of all of this — and I hasten to add this so as to avoid politically devastating charges of “elitism” — the upshot of all of this is not, I hope, for me to be relentlessly critical of virtually everything that U.S. and probably most first-world consumers (that is to say, “people” — and I often wonder at the objectification inherent in so ready a substitution) do on a day-to-day basis. I mean this on two levels. First, I would be deeply remiss, in the context of this sort of a mea culpa, to start pointing the finger around at other people for the simple fault of responding to the economic and social pressures that surround them. Certainly not after having spent so many words describing my own cowardice and how I believe it has operated in the context of writing on this website, to say nothing of how it has operated in my own consumption choices.

Second, it is important to distinguish between evaluating a person qua person and evaluating a person’s actions qua actions. This distinction is often missed in discussions of these sorts of categoric reforms by both sides, but more often (and, I suspect, deliberately) by those who argue in favor of the lifestyle quo ante. It is a rhetorical move that unfortunately seems to have a great deal of traction, and I hope to discuss it in a subsequent essay. For now suffice it to say that these arguments, the ones I have been barred by cowardice from making, should in no way be construed as critical of individuals or indeed of the larger institutions that make the first world such a varied, safe, and comfortable place to live.

The critique that others are making, and that I hope to add to, is of the systems put in place by those institutions, and of the culture fostered by those systems which serve not to increase an individual’s (particularly economic) choices but to limit them to the set of choices rigorously enforced by economic and social pressures. I hope to discuss these limitations in future essays, as they are numerous and complex.

This critique, as expressed in the world of food and food policy, has wound up creating some tentative alliances that make little sense in the current political spectrum. In an interview with “Crunchy Conservative” Rod Dreher, Michael Pollan apparently was “amused to learn that he’s got a following on the [political] Right … but he said that the more deeply he goes into writing about food culture, the more he’s discovering things that resonate with traditional conservatism.” To me, this is both intuitively correct and one of the best arguments that the traditional left-right categories are breaking down along new lines. Our politics will perforce evolve with our polities.

All of which is perhaps my way of saying that I am back. I hope to write three long-ish pieces a week and at least five smaller ones in between. I will probably have a few more editorial-type pieces to write as I try to come to terms with this new politics of food, but I have every hope of returning to writing about food and the law in short order. Thank you for coming back, and I hope you’ll stay.



Drive-By Libertarian v. Straw-Man Foodie

Reason Magazine issues a salvo in the fast-food restaurant labeling discussion, arguing that in our haste to regulate how much fat we eat, consumer protection advocates and supporters of mandatory nutrition information labeling have unduly singled out fast food operations and have forgotten that wretched excess in the consumption of saturated fats is not limited to the drive-thru window. Money quote:

Fast food makes such a savory scapegoat for our perpetual girth control failures that it’s easy to forget we eat less than 20 percent of our meals at the Golden Arches and its ilk. It’s also easy to forget that before America fell in love with cheap, convenient, standardized junk food, it loved cheap, convenient, independently deep-fried junk food.

While these statements may be true as far as they go, it seems to me that the author is playing fast and loose with the various argumenta ad antiquitatem, ad populum, ad hominem, and the old red herring.

To address each of these in turn: first, it may be true that U.S. citizens have been susceptible to overconsumption of the sorts of artery-clogging fare that typify the fast-food menu since long before the invention of the fast-food restaurant, but even if this proposition is true, it does not follow that our tendency to overeat is ordinary or good simply because it preceded the existence of some restaurants subject to regulation.

Second, nobody is arguing that at the current prices, demand for fast-food and fast-food-type food is high. If fast-food-type food weren’t popular, it wouldn’t be a major contributor to U.S. obesity, would it? Again, the fact that lots of people tend to eat fast-food-type food says little, if anything, about whether that tendency is something that we should address with regulation.

Thirdly, the author seems to be saying that because people overeat at independently-owned restaurants that sell, e.g., massive burgers as well as at chain restaurants that sell massive burgers, requiring chains to meet a standard that independent shops may avoid is hypocritical populism. This argument cannot be valid unless chain shops are no better off than independent shops at meeting the standard, and this is not the case for two reasons. 1) The franchisor (because let’s face it, in general we’re talking about franchises here) is more likely than the independent shop already to have access to information about portioning and nutrition. 2) the franchisor is able to design a single sign for use in multiple shops, thereby spreading the large costs of compliance over a wider population than the independent shop.

That is, if you’re Burger King corporate, when you determine the nutritional values of the Whopper and design a sign containing those values, you incur a single cost that brings all of your stores into compliance, but if you’re Ray’s Burger Joint, when you determine the nutritional value of the Ray’s Slider, and design a sign containing that information, you incur a cost that brings only one store into compliance. This cost will have to be replicated for every independent shop in the city. Thus it is not the case that failing to go after independent shops selling fast-food-type food necessarily stems from a desire on the part of the legislator to be seen as tough on big business and a friend of the little guy. It may simply be the case that these standards, although necessary, are more onerous on the independent diner than they are on the chain restaurant, and therefore the requirement of fifteen stores or more within the city constitutes a hardship exemption for smaller businesses.

Finally, all of these objections are another instance of Drive-by Libertarianism and how it obscures the issues. U.S. citizens ate too much beef in greasy-spoon diners in the 1950s for the same reason we eat too much beef in fast-food restaurants now, and it’s a reason that I should expect Libertarians to be more mindful of — government distortion of the market via subsidies.

It is fair to say that Federal Farm subsidies are really only half the problem, and that the other half is that we didn’t develop a firmly-entrenched food culture here in the U.S. prior to the distortions created by the farm subsidies. We didn’t then, and still don’t, have a sense of the difference between “food” and a “meal,” in the way that, for instance, the French do. It is further well-established that proteins and saturated fats and sugars are historically rare in the human diet, meaning that a feast-or-famine mechanism naturally kicks in when high-fat, high-protein foods are present. Unfortunately, the farm bill has made it those foods cheap and omnipresent.

Among my favorite statements about the law and justice is the following, by G.K. Chesterton:
“When you break the big laws, you do not get liberty. You do not even get anarchy. You get the small laws.” It seems to me that when you badly and unintelligently distort the pressures of a market, you get regulation, and the regulation isn’t the problem.



On the Congressional power to regulate vending machines.
4 December 2007, 1:07 am
Filed under: Economics of Eating, Ethics of Eating, Farm Bill, Food Policy, Subsidies

Andrew Sullivan asks, “Since when did the federal Congress have the right to micro-manage what school-kids get from snack machines?”

Since at least 1933.

I know he was probably being rhetorical, but I’m guessing that the
Cato-at-Liberty article to which he links is actually being disingenuous when they point out that nowhere does the Constitution say “Congress shall have the power … to hector schools about the contents of their vending machines.” In fact there is such a power.

Since the legislation to limit the contents of vending machines is attached to the 2007 Farm Bill, I’m guessing that this proposal is somehow tied to the spending power, which SCOTUS has found to be pretty near infinite. In United States v. Butler (1933) the Court adopts the Hamiltonian position that congressional spending power is a free-standing power among the powers enumerated in Article 1 § 8 of the U.S. Constitution. That is to say, Congress may tax and spend for any purpose that it believes serves the general welfare. If the proposal makes certain federal spending contingent upon the states’ compliance with a rule about, e.g., what goes into their school’s vending machines, it’s lawful under Butler, and is in a vein of thinking that goes right back to the founders themselves.1

Ordinarily I wouldn’t write a letter like this to address what I suspect is a rhetorical question, but this one kind of got under my skin: Mr. Sullivan often writes hopefully of the transformative nature of the Paul and Obama campaigns, and I am disappointed to see him occasionally fall into the same tired narratives of government intrusion and nanny-statism. I don’t think this narrative applies: there’s no time-honored tradition or civil right to sell candy to kids in school vending machines. The practice is itself an innovation of the past few decades, and it is not unconservative (as Sullivan defines the term, if I understand him correctly) to discover that innovations require modification.

Moreover, the proposal takes place in the context of a vibrant debate about the nature and extent of U.S. farm subsidies. For instance, it is not controversial to note that subsidies distort market behavior. It is hardly controversial to point out that the farm subsidy shifts the costs of raw inputs such as corn syrup and high-fructose corn syrup from the consumer onto the taxpayer. The net effect is that Americans are able to purchase more calories for their retail dollar, particularly in the form of processed foods containing lots of fat and high-fructose corn syrup: in essence, U.S. taxpayers are paying to create the conditions for our own health and obesity crisis.

Seen in this light, the proposal is an attempt to correct a situation Congress has created. I might agree with Mr. Sullivan that Congress shouldn’t do this, but I am more inclined to say that Congress shouldn’t have to do this.

Update: A reader points out that no discussion of the Congressional spending power is complete without at least the mention of South Dakota v. Dole, which lays out four requirements which limit the spending power as a conditional tool to compel state action, albeit in a largely theoretical manner. The four requirements are: the condition must 1) promote the general welfare, 2) be unambiguous, 3) relate to a federal interest in national projects and programs, and 4) not fall afoul of other constitutional provisions (e.g., it is theoretically possible to condition spending in such a way as to violate, say, the equal protection clause: such a conditioning would be unconstitutional.)

If this had been a legal argument, I would certainly have been expected to address Dole, however it doesn’t seem to me that this spending proposal fails any of the Dole requirements. Moreover, my understanding from ConLaw is that the spending power is more or less unrestricted save in theory, and that as a result conditional spending is almost never challenged.



Opting Out

Guest-Blogger Erin over at Crunchy Con raises an interesting point that is tangential to the notion that feminism and locavorism are in tension. For readers who are not familiar with “Crunchy Con” it is a blog ordinarily written by Rod Dreher, who wrote a book called Crunchy Conservatives, identifying a hitherto ignored part of the political spectrum: conservative Republicans who, disgusted with the disposable commercialism and spiritual bankruptcy of the present consumer-capitalist system, have taken it upon themselves to “opt out” by, e.g., homeschooling their children; repairing rather than replacing their clothes; growing their own food or even just cooking from scratch; getting rid of the television, and so on.

Erin identifies a social support network that has arisen among homeschooling moms, in which they are able to meet and share resources and techniques and success stories and give one another material and emotional support, the same is not true of the fathers who remain at work.

Some men find it necessary to keep the information that their wives “don’t work” very private, because some of them have learned to their detriment that they will face attitudes ranging from derision to open contempt and hostility from their co-workers who have made different choices. Add to this information the fact that your wife is homeschooling your children, and you might as well show up for work in Amish attire, as out-of-touch and otherworldly as your choices will seem, to many, to be. Even if a man is lucky enough to work in an environment where his colleagues are relatively laissez-faire about his family’s choices, many of the socialization opportunities his co-workers engage in will be closed to him: for instance, though he may not particularly mind sports bars, the odds that he’s going to want to spend several hours in one after work when his priority is to spend time with his family is pretty low.

I thought that was interesting, and, particularly to the extent that “crunchy con” values intersect with locavore values (probably not a perfect intersection, but certainly not negligible) I think Erin’s comments illustrate that the greater and more important tension may not be between feminism and locavorism but between work and home.

Industrial agriculture and fast food enable both parents to work outside the home, yes, but it increasingly seems as if the economy in which industrial agriculture and fast food are possible requires both parents to work outside the home. Which requires in turn that we overproduce and overprocess our food.

In another post, Erin writes about the recent phenomenon of the ready-made Thanksgiving dinner as an indicator of misplaced values, work over home particularly. If we’re not working to enable ourselves to make dinner for our families and the ones we love, on Thanksgiving of all days, then why are we working at all? Is the job really its own reward? Has it made you a stranger in your own kitchen?

I can understand, and I certainly don’t judge, people who buy Thanksgiving dinner whole because they have emergencies and can’t spare the time. But if your emergency is not being able to afford not to work on Thanksgiving, then something is terribly wrong: our economy is overshadowing your humanity.

Moreover, the problem creates a feedback loop: the more people have to work on Thanksgiving, the more demand there is for provision of goods and services on the actual day of Thanksgiving. The more demand, the more workers are expected to work on Thanksgiving.

I was also struck by a quote from Rod’s book: “Every one of us can refuse, at some level, to participate in the system that makes us materially rich but impoverishes us spiritually, morally, and aesthetically. We cannot change society, at least not overnight, but we can change ourselves and our families.”

And on that note, I hope that you are able to make time for your family, that you travel safely and can leave your day-to-day pressures behind. I hope, instead of shopping on Friday, that you read a book to yourself, or to a child to whom you are related. I hope you are well. Happy Thanksgiving.



Exam, and Thanksgiving
19 November 2007, 5:33 pm
Filed under: Ethics of Eating, Food Meanings

Posting will be light this week as I have an early final (which is nice, because I get it out of the way) followed by the biggest food holiday on the U.S calendar. It seems to be a characteristic of food bloggers that we a) started doing our own Thanksgiving in college for ourselves and our friends who couldn’t go home, and b) had so much fun doing it that we’ve kept it up, and your humble author is no exception. I started my Senior year of college, when I finally had a house and a kitchen, and I’ve kept it up every year since, and loved it every time. This year I’m cooking for a small number of law students staying in town, after which we’ll probably play Trivial Pursuit or Taboo or something.

Life happens, and the people you wind up cooking Thanksgiving dinner for are rarely your own closest set of friends. Usually it works out that it’s the stragglers and strays, the ones in your community you know but aren’t close to, acquaintances and colleagues. The mood is better somehow for being less jocular, less familiar than cooking dinner for one’s friends; it is more hospitable, in what I think is the true sense of the word, which is making people feel at home. And everyone walks in the door ever so slightly bittersweet and melancholy for the family they’re not sharing the holiday with.

Kate writes, rightly, that food is about “that too brief moment when your brain is flooded with endorphins and takes you out of your head into an ethereal body of ecstasy.” It’s also about sharing that experience with others, even strangers. It is no mistake that the breaking of bread together has cultural and religious significance throughout the ancient world, or that those significances persist in cultures more directly tied to the old world: sharing a meal is one of those things that makes the world seem a little less bleak and unfeeling, a little warmer.

Okay, back to work. Happy Thanksgiving, everyone. I’ll write something a little more Law For Food and a little less autobiographical for Saturday.



Materialism and Happiness
14 November 2007, 11:43 pm
Filed under: consumerism, Economics of Eating, Ethics of Eating, Wal-Martization

Not technically food related at all, but I suspect many readers will find interesting this discussion of the inverse relationship between happiness and materialism. Money quote:

Most of us want more income so we can consume more. Yet as societies become richer, they do not become happier. In fact, the First World has more depression, more alcoholism and more crime than fifty years ago. This paradox is true of Britain, the United States, continental Europe and Japan.

Yes, it’s probably more complicated than that, but I thought this was an interesting example of the same sort of attitude I attributed to my mother this weekend.