Sunday, September 08, 2013

(Repost): CFP: Micro-Symposium: Stanley Fish and the Meaning of Academic Freedom

Call for Papers: Micro-Symposium: Stanley Fish and the Meaning of Academic Freedom (Reposted)

FIU Law Review and the FIU College of Law invite contributions for a Micro-Symposium, Stanley Fish and the Meaning of Academic Freedom, to be published in FIU Law Review in 2014. Micro-symposium commentaries will accompany the papers and proceedings of a live roundtable discussion on academic freedom and Stanley Fish’s forthcoming book, Versions of Academic Freedom: From Professionalism to Revolution. Roundtable participants include Dean Robert Post (Yale), Frederick Schauer (Virginia), Fish, and several others. The program will be held at FIU College of Law on Friday, January 24, 2014.

Micro-symposium commentaries can be a maximum of 600 words. Commentaries must be received by Tuesday, October 1, 2013 at bcreg001@fiu.edu.

In the book, Fish argues

The academy is the place where knowledge is advanced, where the truth about matters physical, conceptual and social is sought. That’s the job, and that’s also the aspirational norm—the advancement of knowledge and the search for truth. The values of advancing knowledge and discovering truth are not extrinsic to academic activity; they constitute it. . . . These goods and values are also self-justifying in the sense that no higher, supervening, authority undergirds them; they undergird and direct the job and serve as a regulative ideal in relation to which  current ways of doing things can be assessed and perhaps reformed. (The “it’s just a job” is not positivism; it does not reify what is on the books.)

It follows from this specification of the academy’s internal goods that the job can be properly done only if it is undistorted by the interests of outside constituencies, that is, of constituencies that have something other than the search for truth in mind. There are thus limits both on the influences academics can acknowledge and the concerns they can take into account when doing their work. . . . It must be conducted (to return to the l915 Declaration) in “in a scholar’s spirit”, that is with a view to determining what is in fact the case and not with a view to affirming a favored or convenient conclusion. If that is the spirit that animates your academic work, you should be left free to do it, although, with respect to other parts of the job (conforming to departmental protocols, showing up in class, teaching to the syllabus), you are constrained. 

Commentaries may discuss any and all legal, ethical, moral, social, practical, personal, and theoretical aspects of academic freedom, Stanley Fish's new book, or his extensive body of work on academic freedom or any other topic. Interested commenters will be provided manuscripts of Fish's book, on request.

Expressions of interest, requests for the manuscript, and other inquiries can be directed to Ben Crego, Law Review Editor-in-Chief, at bcreg001@fiu.edu or to Prof. Ediberto Roman at romane@fiu.edu.

Posted by Howard Wasserman on September 8, 2013 at 03:50 PM in Howard Wasserman, Television | Permalink | Comments (0) | TrackBack

Tuesday, May 14, 2013

Is a broadcast to everyone private under the Copyright Act?

For the final post in my extended visit here, I want to focus on another example in my series of discussions about formalism vs. policy in copyright. Today’s case is WNET v. Aereo, which allowed continued operation of a creative television streaming service. As I’ll discuss below, the case pretty clearly complies with the statutory scheme, much to the relief of those who believe content is overprotected and that new digital distribution methods should be allowed. This time, the policy opposition is best demonstrated by Judge Chin’s dissent in the case.

In the end, though, the case shows what all of the cases I’ve discussed show: copyright was not really developed with digital content storage and streaming in mind. While some rules fit nicely, others seem like creaky old constructs that can barely hold the weight of the future. The result is a set of highly formalistic rules that lead to services purposely designed inefficiently to either follow or avoid the letter of the law. This problem is not going to get any better with time, though my own guess hope is that the pressure will cause providers to create some better solutions that leave everyone better off.

Here are the basic facts.  Aereo runs a system with thousands of dime size antennas. Each of these antennas can capture over-the-air broadcast television, but not cable or satellite signals. OTA signals are “free” – viewers don’t have to pay for access to them the way they do for cable. 

Aereo then runs what is essentially a remote digital video recorder for each subscriber. That is, when a user wants to watch or record a program, the Aereo system tunes one of the antennas to the appropriate channel at the appropriate time, saves the resulting TV signal (a show) to disk, and then either streams it to the user over the internet or stores it for the user for later viewing.

Aereo does this for every single subscriber; if 10,000 people want to record a show, then 10,000 antennas store 10,000 copies of the program.  Why, you ask, would it do something so ridiculously costly and redundant? Because it’s the law, of course.  A prior case, called Cartoon Network stands for this proposition. Here’s the logic: a) a user can use DVRs to store recordings at home (relatively well settled law since the Supreme Court’s decision not to hold VCR makers liable back in 1984); b) a cable operator can store those DVRs at the cable site, because where a customer’s DVR is located does not change the nature of its use, but c) the cable operator must maintain each customer’s choices like a DVR, meaning that the customer chooses what to record, and that a separate copy must be maintained for each customer.

The question in Aereo, then, is whether this basic framework changes if the “cable provider” is now an “antenna farm” provider. There are some differences. The cable subscriber is paying a fee that allows for the rebroadcast of content from the cable operator to the subscriber. Without such a fee/license, such rebroadcast would be infringement. Aereo has no such license, and thus its service could be considered a rebroadcast, which is a no-no. Just ask the folks who tried to rebroadcast NFL games into Canada.

The Aereo Court agreed with the rationale in Cartoon Network, however; the license was not relevant.  Instead, the individualized copies were simply not “public” performances. They were private: selected by the user, recorded in the user’s disk quota, and shown in that form only to the user. As the court noted, it was as if the user had a private antenna, DVR, and Slingbox located at Aereo’s facility, and the fact that Aereo owned it and charged for the service was irrelevant.

Judge Chin dissented from the opinion, and took an opposite view, best described using the original dissent’s text:

Aereo's "technology platform" is, however, a sham. The system employs thousands of individual dime-sized antennas, but there is no technologically sound reason to use a multitude of tiny individual antennas rather than one central antenna; indeed, the system is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.

Judge Chin’s dissent goes on to argue that the formalistic reading of the statute fails, and that we should see Aereo’s acts for what they are: a transmission of content to members of the public, which thus constitutes public performance.

This disagreement is a great ending illustration of the cases I’ve blogged about this month. The tension between formalistic statutory reading and policy based glosses is palpable.  In my last post, I made clear that I favor following the statute unless convinced otherwise.

But that doesn’t answer the fundamental question, which is: what do we make of all this? Sure, this case was rightly decided. Perhaps now this might lead to the formation of an efficient/licensed broadcast network streaming service that costs users less than Aereo because it is less resource intensive.

I’m not sure the Aereo ruling is the right one in the long run.  One of the thorny issues with broadcast television is range. Broadcasters in different markets are not supposed to overlap. Ordinarily, this is no issue because radio waves only travel so far.  When a provider sends the broadcast by other means, however, overlap is possible, and the provider keeps the overlap from happening. DirecTV, for example, only allows a broadcast package based on location.

Aereo is not so limited, however. Presumably, one can record broadcast shows from every market. Why should this matter? Imagine the Aereo “Sunday Ticket” package, whereby Aereo records local NFL games from every market and allows subscribers to stream them. Presumably this is completely legal, but something seems off about it. While Aereo’s operation seems fine for a single market, this use is a bit thornier. I’m reasonably certain that Congress will close that loophole if any service actually tries it.

Thus, dealing with what should be clearly legal under the statute is thornier than it appears at first.  While I believe that more and cheaper streaming options would be a good thing, I wonder whether the disruption to local broadcast markets is the right way to get there. One thing is clear: copyright law is ill equipped to answer the question.

Thanks again to Prawfs for having me, and I'll see you next time around (and in the meantime at madisonian.net).

Posted by Michael Risch on May 14, 2013 at 08:34 AM in Intellectual Property, Television, Web/Tech | Permalink | Comments (7) | TrackBack

Tuesday, July 03, 2012

Signing Off and Remembering Andy

GriffithMultitasking has its limits -- especially in the midst of a major move. As I prepare to head south to Savannah Law School, I wistfully regret not having more time to post on Prawfs during the month of June as frequently as I would have liked, but, as always, I enjoyed my stay. This time around, I'd like to sign off with a posting dedicated to the late and always wonderful Andy Griffith. His first film, A Face in the Crowd (1957) is featured in Advocacy to Zealousness, but Griffith is best known as a fictitious television sheriff and lawyer. Whenever I watch A Face in the Crowd, I think about Griffith's wonderful range as an actor and artist, and how he was celebrated for only a small portion of what he was capable of conveying on the big and small screens of film and television, respectively. Having experienced Griffith as Lonesome Rhodes makes me see Andy Taylor and Ben Matlock a little differently -- with an increased awareness of the depth beneath the surface of affability, and a realization of Griffith's strategic choice to go further in his career by staying in second gear indefinitly rather than shifting to fourth for a brief several miles. He personified some of the most beloved characters related to law and order in popular cultural history. Much like Lonesome, yet in a vastly more positive and productive way, Griffith read his audience and went with what they wanted, what "worked" for the long haul, and he seemed to be at peace with his decision to embrace his "brand" throughout his career. Do we also do this as law professors, or do we continue to stretch and grow throughout our careers? If you've ever shown a Griffith clip in class, which one(s) did you use?

Posted by Kelly Anders on July 3, 2012 at 04:19 PM in Culture, Current Affairs, Film, Life of Law Schools, Teaching Law, Television | Permalink | Comments (2) | TrackBack

Thursday, May 31, 2012

A Coasean Look at Commercial Skipping...

Readers may have seen that DISH has sued the networks for declaratory relief (and was promptly cross-sued) over some new digital video recorder (DVR) functionality. The full set of issues is complex, so I want to focus on a single issue: commercials skipping. The new DVR automatically removes commercials when playing back some recorded programs. Another company tried this many years ago, but was brow-beaten into submission by content owners. Not so for DISH. In this post, I will try to take a look at the dispute from a fresh angle.

Many think that commercial skipping implicates derivative work rights (that is, transformation of a copyrighted work). I don't think so. The content is created separately from the commercials, and different commercials are broadcast in different parts of the country. The whole package is probably a compiliation of several works, but that compilation is unlikely to be registered with the copyright office as a single work. Also, copying the work of only one author in the compilation is just copying of the subset, not creating a derivative work of the whole.

So, if it is not a derivative work, what rights are at stake? I believe that it is the right to copy in the first place in a stored DVR file. This activity is so ubiquitous that we might not think of it as copying, but it is. The Copyright Act says that the content author has the right to decide whether you store a copy on your disk drive, absent some exception.

And there is an exception - namely fair use. In the famous Sony v. Universal Studios case, the Court held that "time shifting" is a fair use by viewers, and thus sellers of the VCR were not helping users infringe. Had the Court held otherwise, the VCR would have been enjoined as an agent of infringement, just like Grokster was.

I realize that this result is hard to imagine, but Sony was 5-4, and the initial vote had been in favor of finding infringement. Folks can debate whether Sony intended to include commercial skipping or not. At the time, remote controls were rare, so skipping a recorded commercial meant getting off the couch. It wasn't much of an issue. Even now, advertisers tolerate the fact that people usually fast forward through commercials, and viewers have always left the TV to go to the bathroom or kitchen (hopefully not at the same time!). 

But commercial skipping is potentially different, because there is zero chance that someone will stop to watch a catchy commercial or see the name of a movie in the black bar above the trailer as it zooms by. I don't intend to resolve that debate here. A primary reason I am skipping the debate is that fair use tends to be a circular enterprise. Whether a use is fair depends on whether it reduces the market possibilities for the owner. The problem is, the owner only has market possibilities if we say they do. For some things, we may not want them to have a market because we want to preserve free use. Thus, we allow copying via a DVR and VCR, even if content owners say they would like to charge for that right.

Knowing when we should allow the content owner to exploit the market and when we should allow users to take away a market in the name of fair use is the hard part. For this reason, I want to look at the issue through the lens of the Coase Theorem. Coase's idea, at its simplest, is that if parties can bargain (which I'll discuss below), then it does not matter with whom we vest the initial rights. The parties will eventually get to the outcome that makes each person best off given the options, and the only difference is who pays.

One example is smoking in the dorm room. Let's say that one person smokes and the other does not. Regardless of which roommate you give the right to, you will get the same amount of smoking in the room. The only difference will be who pays. If the smoker has the right to smoke, then the non-smoker will either pay the smoker to stop or will leave during smoking (or will negotiate a schedule). If you give the non-smoker the right to a smoke-free room, then the smoker will pay to smoke in the room, will smoke elswhere, or the parties will negotiate a schedule. Assuming non-strategic bargaining (hold-ups) and adequate resources, the same result will ensue because the parties will get to the level where the combination of their activities and their money make them the happiest. The key is to separate the analysis from normative views about smoking to determine who pays.

Now, let's apply this to the DVR context. If we give the right to skip commercials to the user, then several things might happen. Advertisers will advertise less or pay less for advertising slots. Indeed, I suspect that one reason why ads for the Super Bowl are so expensive, even in a down economy, is that not only are there a lot of viewers, but that those viewers are watching live and not able to skip commercials. In response, broadcasters will create less content, create cheaper content, or figure out other ways to make money (e.g. charging more for view on demand or DVDs). Refusing to broadcast unless users pay a fee is unlikely based on current laws. In short, if users want more and better content, they will have to go elsewhere to get it - paying for more channels on cable or satellite, paying for video on demand, etc. Or, they will just have less to watch.

If we give the right to stop commercial skipping to the broadcaster, then we would expect broadcasters will broadcast the mix they have in the past. Viewers will pay for the right to commercial skip. This can be done as it is now, through video on demand services like Netflix, but that's not the only model. Many broadcasters allow for downloading via the satellite or cable provider, which allows the content owner to disable fast forwarding. Fewer commercials, but you have to watch them. Or, in the future, users could pay a higher fee to the broadcaster for the right to skip commercials, and this fee would be passed on to content owners.

These two scenarios illustrate a key limit to the Coase Theorem. To get to the single efficient solution, transactions costs must be low. This means that the parties must be able to bargain cheaply, and there must be no costs or benefits that are being left out of the transaction (what we call externalities). Transactions costs are why we have to be careful about allocating pollution rights. The factory could pay a neighborhood for the right to pollute, but there are costs imposed on those not party to the transaction. Similarly, a neighborhood could pay a factory not to pollute, but difficulty coordinating many people is a transaction cost that keeps such deals from happening.

I think that transactions costs are high in one direction in the commercial skipping scenario, but not as much in the other. If the network has the right to stop skipping, there are low cost ways that content aggregators (satellite and cable) can facilitate user rights to commercial skip - through video on demand, surcharges, and whatnot. This apparatus is already largely in place, and there is at least some competition among content owners (some get DVDs out soon, some don't for example).

If, on the other hand, we vest the skipping right with users, then the ability for content owners to pay (essentially share their advertising revenues) with users is lower if they want to enter into such a transaction. Such a payment could be achieved, though, through reduced user fees for those who disable channel skipping. Even there, though, dividing among all content owners might be difficult.

Normatively, this feels a bit yucky. It seems wrong that consumers should pay more to content providers for the right to automate something they already have the right to do - skip commercials. However, we have to separate the normative from the transactional analysis - for this mind experiment, at least.

Commercials are a key part of how shows get made, and good shows really do go away if there aren't enough eyeballs on the commercials. Thus, we want there to be an efficient transaction that allows for metered advertising and content in a way that both users and networks get the benefit of whatever bargain they are willing to make.

There are a couple of other relevant factors that imply to me that the most efficient allocation of this right is with the network:

1. DISH only allows skipping after 1AM on the day the show is recorded. This no doubt militates in favor of fair use, because most people watch shows on the day they are recorded (or so I've read, I could be wrong). However, it also shows that the time at which the function kicks in can be moved, and thus negotiated and even differentiated among customers that pay different amounts. Some might want free viewing with no skipping, some might pay a large premium for immediate skipping. If we give the user the right to skip whenever, it is unlikely that broadcasters can pay users not to skip, and this means they are stuck in a world with maximum skipping - which kills negotiation to an efficient middle.

2. The skipping is only available for broadcast tv primetime recordings - not for recordings on "cable" channels, where providers must pay for content.  Thus, there appears to already be a payment structure in practice - DISH is allowing for skipping on some networks and not others, which implies that the structure for efficient payments are already in place. If, for example, DISH skipped commercials on TNT, then TNT would charge DISH more to carry content. The networks may not have that option due to "must carry" rules. I suspect this is precisely why DISH skips for broadcasters - because it can without paying.  In order to allow for bargaining however, given that networks can't charge more for DISH to carry content is to vest the right with networks and let the market take over.

These are my gut thoughts from an efficiency standpoint. Others may think of ways to allow for bargaining to happen by vesting rights with users. As a user, I would be happy to hear such ideas.

This is my last post for the month - time flies! Thanks to Prawfs again for having me, and I look forward to guest blogging in the future. As a reminder, I regularly blog at Madisonian.

Posted by Michael Risch on May 31, 2012 at 08:05 PM in Information and Technology, Intellectual Property, Legal Theory, Television, Web/Tech | Permalink | Comments (7) | TrackBack

Monday, May 28, 2012

Law as Plinko

My last moments in the classroom this past semester were spent engaging in what is likely a familiar exercise for most law professors -- trying to inspire students and leave them with some parting words of wisdom, encouragement, and motivation.  I look forward to these moments, and hope that my last-minute ramblings help bring together the general themes of the course and, more broadly, replenish their passion for the law to the extent that specific and more immediate parts of their experience -- such as Socratic conversations, lengthy readings, and concerns about the final examination -- have them questioning why they are in law school and are incurring debt in the process.  To quote Michael Scott, I might as well tell my students on the last day of classes to "get as much done as you can... because, afterward, I'm going to have you all in tears."

This semester, I discussed what I attempted to accomplish in the course and apologized to the extent that I fell short of their expectations.  I revealed to them what led me to study the law, and why I am continually fulfilled and humbled by my pursuit to understand the law and the law's role in society.  In my constitutional law course, I read to my students Neal Katyal's comments after Hamdan, celebrating the rule of law and how it distinguishes us from other political communities.  I also asked my students whether anyone has seen The Godfather.  Predictably, all hands were raised. When I asked what the first line of the movie is, no hands went up.  The first line is, "I believe in America."  I explained candidly why I believe in America, and it is specifically because of the structure of the Constitution that they just (hopefully) learned about and also because they will be active participants in that structure, seeking to improve the law and society.

I also, in a rather light portion of my semester-ending remarks, share my fun theory of the law -- that the law is like Plinko.  Yes, Plinko. An explanation follows:

Plinko, as shown here, is a game on the long-running CBS game show, "The Price is Right," in which contestants place chips flat at the top of a large vertical board -- once the contestant lets go of the chip, it moves down through a series of pegs and ultimately lands at the bottom, in one of several spaces labeled with different dollar amounts.  The contestant wins the amount of money assigned to the space where the chip lands.  Part of the fun is seeing how the chip winds its way through the pegs and, of course, where the chip's journey comes to an end -- the winnings range from $0 to hundreds and even thousands of dollars. 

It seems to me that the law is similar -- the facts of a case are like the chips, and the pegs are established cases that the facts must work through, and the space is the result that the court eventually hands down (e.g., granting or denying a motion, reversing or affirming a decision).  What, I believe, we do in law school is also related -- we attempt to ensure that students understand the pegs (the applicable precedents), how they have evolved or shifted over time, and the critical facts and context that help explain where the pegs are.  In general, in a Socratic exercise and on the final examination, students entertain a modified or new fact pattern, and analyze how those facts may "fit" in the existing framework.  We give students random fact patterns because it is unlikely that, in practice, they will receive a factual problem that is identical in all respects to an established case.  They must have a substantive foundation -- an understanding of the precedents -- and the skills -- how to research, write, and argue -- in order to properly assess how the new facts may work their way through the relevant cases and to then be able to advocate, on behalf of their client, for how those facts should work their way through the prior cases.  This is why I refer to cases as guideposts -- they literally are the pegs that set the general bounds within which certain issues will be examined and resolved. 

Further, students, equipped with an understanding of the law and the tools to analyze and advocate, can argue for why the guideposts should and must change.  Here is where they can become agents for broad social change -- by removing and reconstructing the guideposts that previously constrained and dictated how certain issues would be reviewed.  Again, in order to do this, students need the substantive foundation in the law and the skills with which to dissect cases and propose new legal principles.  The study of legal doctrine and professional skills may seem tedious, slow, and boring at times, but is critically necessary if students are to one day be effective representatives of their clients' interests and/or instruments of robust changes in the law and society.

This rather informal way of looking at the law as Plinko seems consistent with Holmes's theory of law as prediction.  When a contestant puts that chip down on the board, one does not know where it will land; at best, one can develop some sense as to where it may land given certain data points.  Similarly, armed with a set of facts, an attorney can offer only his or her prediction as to how a certain judge will apply certain guideposts, and what the outcome will be. 

Law as Plinko also may help one appreciate the different aspects of the legal process.  Whereas the top pegs may be akin to standards for the sufficiency of a complaint and jurisdictional issues, later pegs may be akin to guideposts governing whether the facts should survive a motion for summary judgment, and the final pegs akin to the standards on the merits of a legal issue.  This theory also emphasizes framework and process, where students focus on result (e.g., who "won" and who "lost").

It doesn't leave them in tears, but students seem nonetheless to enjoy this admittedly nutty way of viewing the law. 

Posted by Dawinder "Dave" S. Sidhu on May 28, 2012 at 11:57 AM in Games, Legal Theory, Teaching Law, Television | Permalink | Comments (0) | TrackBack

Wednesday, May 09, 2012

In Case You Missed It: Michelle Alexander on the Colbert Report

Michelle Alexander (Ohio State) discussed her compelling new book, "The New Jim Crow: Mass Incarceration in the Age of Colorblindness" (New Press), on last night's edition of the Colbert Report.

The Colbert ReportMon - Thurs 11:30pm / 10:30c
Michelle Alexander
www.colbertnation.com
Colbert Report Full EpisodesPolitical Humor & Satire BlogVideo Archive
One of my favorite parts of the interview: Colbert asking, if people of color do not use drugs at higher rates than whites, "why didn't David Simon set The Wire in Greenwich, Connecticut?" Congratulations to Michelle on her wonderful appearance and on her groundbreaking work.

Posted by Dawinder "Dave" S. Sidhu on May 9, 2012 at 01:51 PM in Books, Television | Permalink | Comments (0) | TrackBack

Wednesday, May 02, 2012

The politics of apolitical TV

We've been watching and enjoying the new HBO comedy Veep, which follows the exploits of a marginalized, marginally competent woman VP. The show draws a lot of humor from the way the titular Veep flails away, constantly asking her secretary whether the President has called (he never has), and working (not very well) on two token, dead-end policy items the President has given to her--"clean" jobs (and the issue is whether to put someone from the oil industry on the VP's clean-jobs commission) and filibuster reform.

The show (and commenters on the show) have made much of the show's supposedly apolitical approach. The President never is seen, no one mentions which party is in power, and the policy goals discussed are supposed to be non-partisan. This is at least supposed to be a far cry from The West Wing, which featured what I once called a "Democratic president that real Democrats only dream about-imagine a President with Bill Clinton's political skills, Michael Dukakis' policy goals, Jimmy Carter's commitment to monogamy, and Daniel Patrick Moynihan's intellect."

So does the show succeed at being apolitical?

Some Republicans initially complained that the show was another example of Democrats making fun of Sarah Palin, although that is only true if all depictions of an in-over-her-head female politician now are parodies of Sarah Palin. That we now associate this sort of character with Palin just shows the difficulty of political parody--truth has surpassed satire (part of why I actually find it hard to watch The Daily Show at times).

But filibuster reform is not an apolitical issue, at least in the current environment. It is something strongly wished for by many liberals and progressives, particularly among academics and political commentators, who view the Senate as a defective, unrepresentative, anti-democratic institution made worse by the costless, silent, and routine filibuster that is functionally an all-purpose super-majority requirement. Now that might be a product of momentary political majorities and President Romney and a 52-seat Republican Senate would be pushing the elimination of the filibuster as a matter of patriotic duty (actually, this may be a virtual 2013 certainty if events unfold that way). But the notion that the Senate needs reforming, given its unrepresentative nature, is a decidedly lefty view right now.

The last point is to consider what it says that filibuster reform is one of the symbolic-but-pointless issues that a President would dump on a marginalized VP. It makes sense in one way, in that it has no chance of going anywhere, so it is precisely the no-chance symbolism you pawn off. On the other hand, knowing the reality of routine filibusters and what they have wrought shows this as a genuine problem with an actually attainable solution; one would hope a President would get behind this as a real issue in the interest of his political agenda. But from a show's standpoint, it is the type of procedural/technical concern about which the public does not care--and thus neither would the President.

Posted by Howard Wasserman on May 2, 2012 at 09:57 AM in Culture, Howard Wasserman, Law and Politics, Television | Permalink | Comments (1) | TrackBack

Monday, March 12, 2012

Social Media and the Kony 2012 Campaign

By now, you all (likely) will have come across the Kony 2012 campaign. Sponsored by a US-based charity group, Invisible Children, this campaign aims to raise public awareness about the Lord’s Resistance Army (LRA) and its leader, Joseph Kony, through a 30 minute video that has gone viral – receiving upwards of 60 million hits (and growing fast). This documentary video has caught the attention of a star-studded cast, including Justin Bieber, George Clooney, and Lady Gaga. Kony remains at large, despite having been indicted by the International Criminal Court (ICC) in 2005 and notwithstanding the weakening of the LRA. (A rebel group, the LRA has inflicted mass atrocities in Northern Uganda, but for several years now has fled the country). Kony is charged with an array of war crimes and crimes against humanity. The Kony 2012 campaign encourages his capture and supports the intervention of Ugandan
government armed forces (assisted by American special-ops). Ever mobile, Kony is no longer in Uganda, but likely in the Central African Republic. The brutal entanglement of children in the LRA, as combatants, sex slaves, and domestic helpers, has been central to the reach of the Kony 2012 campaign and its attendant calls for support.

This campaign demonstrates the power of social media to mobilize and raise awareness. But this campaign also demonstrates the ability of social media to essentialize, sensationalize, and reductively simplify. For starters, in addition to the horrors inflicted by the LRA, the government of Uganda has also been responsible for human rights abuses in the country, including massive displacement of the local population, and also outside the country. Second, in calling for armed action, the video exhorts the very militarization that, in turn, has plagued Northern Uganda and Southern Sudan for decades already. The process of peace and justice in Northern Uganda is painstakingly complex – at the national level amnesties have played a key role – and criminal prosecutions are far from a self-evident solution, especially at the ICC. The problem of child soldiering is much more complex than the video portrays. The saving grace of international humanitarianism can only go so far – the vast majority of LRA child soldiers, after all, exited the LRA not by humanitarian rescue but, instead, by escaping or abandoning the group. Reintegration, moreover, needs to occur locally. Criminal prosecutions of a handful of recruiters are not a cure-all. To be sure, the LRA has relied on brutal abduction of children. World-wide, however, and including elsewhere in Africa, a majority of child soldiers demonstrate some initiative in coming forward and enlisting in fighting forces. Child soldiering is a global phenomenon, not just an African phenomenon – the majority of child soldiers in fact are not on the African continent. Nor are the majority of child soldiers young children – most are adolescents, often older adolescents; approximately 40% are girls; some child soldiers are implicated in grievous acts of atrocity, at times against other children.

The best way to prevent child soldiering is to understand it as a composite of practices, not as a singular practice to be generalized from the LRA. A better way to reintegrate former child soldiers, and attend to restorative needs, is to humanize former child soldiers, not present them passively as devastated mindless victims or deranged cold-blooded automatons programmed to kill. Oxford University Press recently published my book, Reimagining Child Soldiers in International Law and Policy, which I wrote to advance a nuanced conversation so as to meaningfully improve preventative and rehabilitative efforts (youtube summary here). But nuanced conversations tend to lack catchy sound-bites. Does Invisible Children, then, have it right – put a simple image forward, boldly through #StopKony, and then follow up, as it does, with some texture in responsive, albeit at times defensive, posts
that parry criticism, concern, and commentary?

Posted by Mark Drumbl on March 12, 2012 at 04:38 PM in Criminal Law, Culture, Current Affairs, International Law, Law and Politics, Television | Permalink | Comments (0) | TrackBack

Monday, December 19, 2011

Breaking the Net

Mark Lemley, David Post, and Dave Levine have an excellent article in the Stanford Law Review Online, Don't Break the Internet. It explains why proposed legislation, such as SOPA and PROTECT IP, is so badly-designed and pernicious. It's not quite clear what is happening with SOPA, but it appears to be scheduled for mark-up this week. SOPA has, ironically, generated some highly thoughtful writing and commentary - I recently read pieces by Marvin Ammori, Zach Carter, Rebecca MacKinnon / Ivan Sigal, and Rob Fischer.

There are two additional, disturbing developments. First, the public choice problems that Jessica Litman identifies with copyright legislation more generally are manifestly evident in SOPA: Rep. Lamar Smith, the SOPA sponsor, gets more campaign donations from the TV / movie / music industries than any other source. He's not the only one. These bills are rent-seeking by politically powerful industries; those campaign donations are hardly altruistic. The 99% - the people who use the Internet - don't get a seat at the bargaining table when these bills are drafted, negotiated, and pushed forward. 

Second, representatives such as Mel Watt and Maxine Waters have not only admitted to ignorance about how the Internet works, but have been proud of that fact. They've been dismissive of technical experts such as Vint Cerf - he's only the father of TCP/IP - and folks such as Steve King of Iowa can't even be bothered to pay attention to debate over the bill. I don't mind that our Congresspeople are not knowledgeable about every subject they must consider - there are simply too many - but I am both concerned and offended that legislators like Watt and Waters are proud of being fools. This is what breeds inattention to serious cybersecurity problems while lawmakers freak out over terrorists on Twitter. (If I could have one wish for Christmas, it would be that every terrorist would use Twitter. The number of Navy SEALs following them would be... sizeable.) It is worrisome when our lawmakers not only don't know how their proposals will affect the most important communications platform in human history, but overtly don't care. Ignorance is not bliss, it is embarrassment.

Cross-posted at Info/Law.

Posted by Derek Bambauer on December 19, 2011 at 01:49 PM in Blogging, Constitutional thoughts, Corporate, Current Affairs, Film, First Amendment, Information and Technology, Intellectual Property, Law and Politics, Music, Property, Television, Web/Tech | Permalink | Comments (1) | TrackBack

Friday, November 18, 2011

A Soap Impression of His Wife

As I previewed earlier this week, I want to talk about the copyright implications for 3D printers. A 3D printer is a device that can reproduce a 3-dimensional object by spraying layers of plastic, metal, or ceramic into a given shape. (I imagine the process smelling like those Mold-a-Rama plastic souvenir vending machines prevalent in many museums, a thought simultaneously nostalgic and sickening). Apparently, early adopters are already purchasing the first generation of 3D printers, and there are websites like Thingiverse where you can find plans for items you can print in your home, like these Tardis salt shakers.*

Tardis salt shakers

Perhaps unsurprisingly, there can be copyright implications. A recent NY Times blog post correctly notes that the 3D printer is primarily suited to reproduce what § 101 of the Copyright Act calls "useful articles," physical objects that have "an intrinsic utilitarian function," and which, by definition, receive no copyright protection...except when they do. 

 A useful article can include elements that are protectable as a "pictorial, graphic, [or] sculptural work." The elements are protectable to the extent "the pictorial, graphic, or sculptural features...can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." There are half a dozen tests courts have employed to determine whether protectable features can be separated from utilitarian aspects. Courts have rejected copyright protection for mannequin torsos and the ubiquitous ribbon bike rack, but granted it for belt buckles with ornamental elements that were not a necessary part of a functioning belt.

Carol Vaquero 1


Print out a "functional" mannequin torso (or post your plans for it on the internet) and you should have no trouble. Post a schematic for the Vaquero belt buckle, and you may well be violating the copyright protection in the sculptural elements. But even that can be convoluted. The case law is mixed on how to think about 2D works derived from 3Dworks, and vice versa. A substantially similar 3D work can infringe a 2D graphic or pictorial work (Ideal Toy Corp. v. Kenner Prods. Div., 443 F. Supp. 291 (S.D.N.Y. 1977)), but constructing a building without permission from protectable architectural plans was not infringement, prior to a recent revision to the Copyright Act. Likewise, adrawing of a utilitarian item might be protectable as a drawing, but does not grant the copyright holder the right to control the manufacture of the item.

And if consumers are infringing, there is a significant risk that the manufacturer of the 3D printer could be vicariously or contributorily liable for that infringement. The famous Sony decision, which insulated the distribution of devices capable of commercially significant noninfringing uses, even if they could also be used for copyright infringement, has been narrowed both by recent Grokster filesharing decision and by the DMCA anticircumvention provisions. The easy, but unsatisfying takeaway is that 3D printers will keep copyright lawyers employed for years to come.

Back to the Tardis shakers, for a moment: the individual who posted them to the Thingiverse noted that the shaker "is derivative of thingiverse.com/thing:1528 and thingiverse.com/thing:12278", a Tardis sculpture and the lid of bottle, respectively. I found this striking for two reasons. First, it suggests a custom of attribution on thingiverse, but I don't yet have a sense for whether it's widespread. Second, if either of those first things are protectable as copyrighted works, (which seems more likely for the Tardis sculpture, and less so for the lid) then the Tardis salt shaker may be an unauthorized, and infringing, derivative work, and the decision to offer attribution perhaps unwise in retrospect.

* The TARDIS is the preferred means of locomotion of Doctor Who, the titular character of the long-running BBC science fiction program. It's a time machine / space ship disguised as a 1960s-era London police call box. The shape of the TARDIS, in its distinctive blue color, is protected by three registered trademarks in the UK.

 

Posted by Jake Linford on November 18, 2011 at 09:00 AM in Information and Technology, Intellectual Property, Television, Web/Tech | Permalink | Comments (0) | TrackBack

Wednesday, October 26, 2011

How Baseball Made Me a Pirate

Major League Baseball has made me a pirate, with no regrets.

Nick Ross, on Australia's ABC, makes "The Case for Piracy." His article argues that piracy often results, essentially, from market failure: customers are willing to pay content owners for access to material, and the content owners refuse - because they can't be bothered to serve that market or geography, because they are trying to force consumers onto another platform, or because they are trying to leverage interest in, say, Premier League matches as a means of getting cable customers to buy the Golf Network. The music industry made exactly these mistakes before the combination of Napster and iTunes forced them into better behavior: MusicNow and Pressplay were expensive disasters, loaded with DRM restrictions and focused on preventing any possible re-use of content rather than delivering actual value. TV content owners are now making the same mistake.

Take, for example, MLB. I tried to purchase a plan to watch the baseball playoffs on mlb.com - I don't own a TV, and it's a bit awkward to hang out at the local pub for 3 hours. MLB didn't make it obvious how to do this. Eventually, I clicked a plan that indicated it would allow me to watch the entire postseason for $19.99, and gladly put in my credit card number.

My mistake. It turns out that option is apparently for non-U.S. customers. I learned this the hard way when I tried to watch an ALDS game, only to get... nothing. No content, except an ad that tried to get me to buy an additional plan. That's right, for my $19.99, I receive literally nothing of value. When I e-mailed MLB Customer Service to try to get a refund, here's the answer I received: "Dear Valued Subscriber: Your request for a refund in connection with your 2011 MLB.TV Postseason Package subscription has been denied in accordance with the terms of your purchase." Apparently the terms allow fraud.

Naturally, I'm going to dispute the charge with my credit card company. But here's the thing: I love baseball. I would gladly pay MLB to watch the postseason on-line. And yet there's no way to do so, legally. In fact, apparently the only people who can are folks outside the U.S. And if you try to give them your money anyway, they'll take it, and then tell you how valued you are. But you're not.

So, I'm finding ways to watch MLB anyway. If you have suggestions or tips, offer 'em in the comments - there must be a Rojadirecta for baseball. And next season, when I want to watch the Red Sox, that's the medium I'll use - not MLB's Extra Innings. MLB has turned me into a pirate, with no regrets.

Cross-posted at Info/Law.

Posted by Derek Bambauer on October 26, 2011 at 07:48 PM in Criminal Law, Culture, Information and Technology, Intellectual Property, International Law, Music, Odd World, Sports, Television, Web/Tech | Permalink | Comments (34) | TrackBack

Monday, October 17, 2011

More federal jurisdiction on TV

I love when TV even indirectly or incidentally throws some law into the mix. Last night's episode of HBO's Boardwalk Empire actually turned on federal jurisdiction.

For those of you who don't watch the show, the main character is Enoch "Nucky" Thompson, an Atlantic City (N.J.) government official/political-machine boss/bootlegger/gangster in the early 1920s, loosely based on real-life Atlantic City boss/bootlegger Nucky Johnson). In early 1921, Thompson has been charged in state court with election fraud. His lawyer discovers that part of the fraud included bringing prostitutes from Philadelphia to Atlantic City to provide sexual favors for certain individuals in exchange for voting Republican. This violates the Mann Act of 1910, which generally prohibits the transportation of women across state lines for "immoral purposes." This means that Thompson now can be charged in federal court.

The lawyer arranges for the women to "report" Thompson to the New Jersey Attorney General, who is prosecuting the case. And while he  is initially thrilled about these new charges and the federalization of the case, the story makes clear that Thompson (and his attorney) welcome this development, since  U.S. Attorney General Harry Daugherty (Warren Harding's real AG) is one of Thompson's cronies and likely will make sure the charges are dismissed. Thompson later tells his mistress, with a smile, "I violated the Mann Act."

Hey, the federal government was overcharging even in 1921.

Posted by Howard Wasserman on October 17, 2011 at 01:20 PM in Culture, Howard Wasserman, Television | Permalink | Comments (0) | TrackBack

Thursday, October 13, 2011

The Pirates' Code

There have been a number of attempts to alter consumer norms about copyright infringement (especially those of teenagers). The MPAA has its campaigns; the BSA has its ferret; and now New York City has a crowdsourced initiative to design a new public service announcement. At first blush, the plan looks smart: rather than have studio executives try to figure out what will appeal to kids (Sorcerer's Apprentice, anyone?), leave it to the kids themselves.

On further inspection, though, the plan seems a bit shaky. First, it's not actually a NYC campaign: the Bloomberg administration is sockpuppeting for NBC Universal. Second, why is the City even spending scarce taxpayer funds on this? Copyright enforcement is primarily private, although the Obama administration is lending a helping hand. Third, is this the most effective tactic? It seems more efficient to go after the street vendors who sell bootleg DVDs, for example - I can buy a Blockbuster Video store's worth of movies just by walking out the front door of my office. 

Yogi Berra (or was it Niels Bohr?) said that the hardest thing to predict is the future. And the hardest thing about norms is changing them. Larry Lessig's New Chicago framework not only points to the power of norms regulation (along the lines of Bob Ellickson), but suggests that norms are effectively free - no one has to pay to enforce them. This makes them attractive as a means of regulation. The problem, though, is that norms tend to be resistant to overt efforts to shift them. Think of how long it took to change norms around smoking - a practice proven to kill you - and you'll appreciate the scope of the challenge. The Bloomberg administration should save its resources for moving snow this winter...

Posted by Derek Bambauer on October 13, 2011 at 06:52 PM in Film, Information and Technology, Intellectual Property, Music, Property, Television, Web/Tech | Permalink | Comments (5) | TrackBack

Sunday, September 11, 2011

The Duty of Law Professors to "Change Sh*t" -- Part Three

The Wire comments on a number of social actors, including politicians and journalists, and the central question I am exploring in these posts is what the series has to say about our profession. One scene in the series suggests that academics merely ‘study each other’s studies’ without regard to whether their research has a meaningful impact on the underserved or marginalized. A related though secondary question is whether those of us law professors who are discussing The Wire in the academic arena are validating the scene’s point.

My first post set the stage for this discussion. The second -- drawing upon the views of law professors who have dedicated time to The Wire -- addressed whether ‘studying’ itself should be criticized by the series, whether The Wire is a legitimate source of scholarly inquiry, and who should be the proper audience for academic research.

This final installment -- relying again on the views of law professors and others, including a former mayor of Baltimore and a major castmember from the series -- explores whether law professors should move beyond their core academic functions to enhance social welfare.

In the scene at issue, Dr. Parenti, a sociology professor, is excited to release his research to other academics, though “Bunny” Colvin appears to express his frustration that academics ‘studying each other’s studies’ will not yield tangible improvements on the ground.

To better understand the meaning of the exchange, it may be useful to take a step back and understand Colvin and the series’ overall theme.  First, Colvin is someone who, as a former police commander in West Baltimore, went above and beyond because of his growing dissatisfaction with the negligible impact the police department’s traditional approaches to crime and drugs were having on the streets and in the community. In particular, Colvin surreptitiously initiated a bold tactical experiment in which drug dealers in his district were pushed into designated areas where drug offenses would not be enforced by his officers. While these locations became havens for drugs and related problems, the vast remainder of Colvin’s district was quiet and peaceful. Once the powers that be got wind of this initiative, however, Colvin was blasted for “legalizing drugs” and promptly urged to leave the force.

As to The Wire, the series is a meditation on circumstances that call out for change, circumstances that compelled Colvin to transcend his basic roles in order to try to make a difference. “The Wire at once points to the almost insurmountable hurdles to changing things, while insisting that things must change,” observes Professor Capers. The exchange between Colvin and Dr. Parenti, placed in the context of Colvin’s own narrative and against the backdrop of one of the series’ message that “things must change,” suggests that Colvin would implore the academic community, law professors included, to do more -- as he did. To be satisfied only with our traditional duties, Colvin may say, would be to allow dire situation on the corners and in other distressed social spaces to fester unabated. In short, Colvin did not accept the status quo and thus would hope academics would not either.

To be sure, law professors may not be willing do more in society, even if they can or should. Professor Richard McAdams recognizes that what made “Colvin great is that he held himself to a higher standard. He didn’t just try to be a good police officer; he was a community organizer, which cost him his career.” Professor McAdams adds that, “I revere him for being that way and respect his wish that the rest of us could live up to his standard.” But he doubts whether law professors may be “as self-sacrificing as Colvin.”

Colvin may appreciate that some law professors may be risk averse, but may suggest that staying within the lines may do little for those in need. The Wire’s David Simon noted in an April interview that those in the urban underclass have been left to languish by institutions because there is no need or incentive for them to be included in the American promise of physical security and economic possibility. “There’s no profit to be had in doing anything other than marginalizing them and discarding them,” Simon decries. Law professors, driven by notions of social justice, may be able to reach those who have slipped through the cracks, even if the same people are regarded by others as lacking intrinsic worth or economic value.

This is more than a theoretical possibility -- some law professors operating within the unique academic environment are surpassing traditional bounds and meeting Colvin’s higher standard. As Professor andré cummings notes, there are law professors who are “anxiously engaged in community building and solutions oriented activism,” and are “writi[ng] about and seriously engage[d] on the street, [including in] many of the issues that are raised and interrogated in The Wire.” Professor Crayton concurs that “there are plenty of academics whose work directly applies to the ‘real world’ and attempts to actually change it for the better,” though he concedes that “[i]t’s not always the kind of work prized by their colleagues as the most significant[.]” A former dean of the University of Maryland School of Law similarly told me that clinical programs represent “one way to get outside the walls of academia and connect not only with the legal profession but focus on serving a distinct social good.” Former Baltimore mayor and current Howard law school dean Kurt Schmoke told me that academics were of undeniable assistance to his administration as he attempted to tackle drugs in the city. Recent well-publicized comments regarding the nominal external relevance of law professors’ work may be difficult to square with the efforts of these academics who have made a difference in Baltimore and elsewhere.

Jim True-Frost – who played Roland Pryzbylewski in The Wire, a former city police officer who finds his calling teaching math in a Baltimore public middle school around the time Colvin and Dr. Parenti conducted their pilot project in the same school – suggests that whether a law professor “gets her hands dirty and address the problems” affecting places like Baltimore will be revealed “case by case,” and thus cannot be based on wholesale generalizations about the profession. According to a federal judge who has a strong relationship with Baltimore, what drives a law professor to be the exception, and not the rule, is not a professional norm or social expectation. Rather, the judge, who spoke to me on the condition of anonymity, said that the “impulse” to do more is personal and “springs from a moral, religious, or ethical context” stemming from the professional’s upbringing.

Accordingly, the question is not whether law professors can or should reach beyond the campus walls, as clearly there are some who do, but whether more of us will help improve the situations in America’s most challenging contexts and desperate areas and thereby help alter the perception, seemingly held by Colvin and others, that academics are speaking to each other without affecting positive social change. Moreover, as for the law professors, myself included, who use The Wire for academic purposes, Professor cummings generously states that we are not “unwittingly supporting bunny colvin’s incredulousness regarding an academic’s fascination with data and studies rather than functional solutions and ‘in the trenches’ type of outreach.” Whether Colvin’s critical assessment applies may be best determined on an individual basis. Speaking only for myself, I think it does -- my direct efforts on behalf of the underclass are not close to the threshold above which I would feel absolved from Simon’s or Colvin's judgment.

In sum, The Wire offers significant insights into various social ills as well as the institutional failures which permit those ills to solidify and drift further from the grasp of reform efforts. Academia is not spared from the series’ critique of social entities that act to further only their interests and that do not enhance the lives of those who require help.

The Wire also gives us a veteran police commander who established a “higher standard” for service in the community. There undoubtedly are law professors who are already meeting these elevated obligations, which indicate that Colvin set forth more than an aspirational ideal, but an attainable benchmark for socially conscious professional conduct. Joining these professors – and Colvin – in a pursuit of increased social welfare is worth striving for. The alternative, Colvin may say, is to be content in an insular, rarified bubble and complicit in the continuation of evils outside of it.

Perhaps the “higher standard” to which Colvin ascribed and would demand of academics will become normalized as more law professors reach the marks already passed by some of their colleagues. If the ethos does change in this fashion, the profession attains greater entitlement to the public’s sacred trust and a stronger shield from criticism from others. Moreover, and more importantly, as a society we stand a greater chance at ridding our communities of the entrenched structures and social difficulties that restrain progress and prosperity, particularly for those belonging to the urban underclass.

Posted by Dawinder "Dave" S. Sidhu on September 11, 2011 at 07:50 PM in Television | Permalink | Comments (0) | TrackBack

Wednesday, September 07, 2011

The Duty of Law Professors to "Change Sh*t" -- Part Two

The Wire comments on a number of social actors, including police department heads, city officials, and journalists. In my first post, I indicated my interest in exploring what The Wire may have to say about our profession.  A scene involving characters “Bunny” Colvin (a former Baltimore police major) and Dr. David Parenti (a University of Maryland sociology professor) appears to offer the best insights into the view that David Simon and others behind The Wire may have of academics.  The scene suggests that professors are content in 'studying each other’s studies' without regard to whether academic work dismantles entrenched social problems or improves the lives of those in marginalized communities or neighborhoods.  Professor Kareem Crayton agrees that this scene “says a lot about the disjunction between the academy and policy.”  What it seems to say is not too flattering.

I am also interested in addressing a second, related question: whether those of us who have dedicated finite time as law professors to The Wire are validating this apparent comment about the insular priorities and limited concerns of professors.  The factual predicate for this critical judgment exists, as academics – myself included – have held events, based scholarship, and taught classes on the series. 

For assistance with my meditation on the meaning of this scene and whether law professors are proving in real life the scene’s apparent point, I turned to these law professors and others, including a central cast member from the series.  After the jump, I summarize their responses and interpretive reactions to the exchange between Dr. Parenti and Colvin.

As a threshold matter, there was no quarrel with the notion that “studying,” though characterized sarcastically by Colvin, represents a quintessential role of a law professor.   The first-order responsibilities of a member of a law school faculty include engaging in research and scholarship. 

Relatedly, we seemed to agree that The Wire itself is a legitimate object of academic focus.  PrawfsBlawg's own Professor Howard Wasserman stated that, “legal academics have seized on The Wire because it shows (in the most realistic and accurate way possible) the public the judicial and political systems . . . that most of the public never sees or experiences first-hand.”  The series acts as “a visual aide that brings the conversation to life,” he adds.  Indeed, Professor Richard Esenberg has invoked The Wire in his writings in the way “one might quote Shakespeare for his poignant observations on the human condition.”

Similarly, Professor Randy Barnett explained that, “As a former criminal prosecutor in Chicago, I find The Wire to be the most accurate depiction to date of the criminal justice system, at least in big cities.”  Previous representations of the criminal justice system missed the mark, according to Professor Barnett, “That is, until The Wire.”  For law students, the series is an “entrée into the world with which district attorneys and police departments must intimately interact,” he states.  For these reasons, he says, the series is “good training to be in the criminal justice system today.”  Accordingly, it may be argued that for law professors to include The Wire in the classroom or in writing is for law professors to perform their traditional, primary roles. 

While teaching and scholarship may be the principal responsibilities of law professors, and while The Wire may form a legitimate basis for both, this may not explain Colvin’s disappointment in speaking with Dr. Parenti.  With his “academics?” quip, perhaps Colvin was displeased that the intended audience of Dr. Parenti’s research was limited to his academic colleagues.  The Wire’s depiction of institutions and how they interact suggests, at least implicitly, that scholarship should take into account other institutional actors for it to have a practical chance of leading to reform.  “It is one thing for me to write articles that propose reforms to the law,” said Professor Bennett Capers, told me.  “But unless I also attend to how such a reform will play out among various (and often warring) institutions (police departments, prosecutor’s offices, the bench, legislators, the school system, the media, the voters), I haven’t really thought through my proposal.”  Professor Capers believes that, if professors think through these relationships as part of their scholarship, “we really can make a difference.”

For Professor Wasserman, audience may not necessarily be the issue for Colvin -- the problem lies not with Dr. Parenti (and by extension other academics), but others who ignore the findings and recommendations contained in academic work.  Professor Wasserman noted that “the job of academics is to think and write about the potential, . . . to consider grand ideas and solutions that may not be politically feasible or realistic[.]”  From Professor Wasserman’s perspective, Colvin’s response to Dr. Parenti “can be read less as an indictment of academics as an indictment of the political system’s inability or unwillingness to try new and experimental ideas.”

Under this theory, academics generate proposals and effectively trigger the responsibility of policymakers to review and endorse the proposals.  “Dr. Parenti properly recognizes the importance of academics and researchers having a conversation about change, so that the conversation at least occurs.  And we hope the political system catches up,” says Professor Wasserman.  Hannah K. Gordon, who invoked The Wire in a legal article, similarly said to me that, “The struggle to overcome the disconnect [between studying behavior and influencing behavior] does not invalidate the value of research, which can be a first step in tackling societal problems.”  The next steps, it would seem, are where other institutions come in to advance and execute the proposals created in the academic laboratory of ideas.

That said, Colvin may not find appealing or satisfactory the view that first, professors are fully performing their societal functions by engaging in teaching and scholarship, and second, that it is up to others in the system to consider or adopt the thoughtful analysis or proposals put forth by academics.  It is unclear whether Colvin’s rhetorical question as to when “sh*t” would change is meant exclusively for the latter category of social players who fail to do their part once academics do theirs.  Some additional cue would be helpful or needed to clarify whether Colvin accepts this roughly split system of reform and the circumscribed roles of the agents within it.  The absence of such an express indication permits the impression that it is academics with whom Colvin is let down in this particular scene.  

Accordingly, we may be left wondering, in the words of Professor Esenberg, “if Bunny Colvin’s remarks are not properly directed to legal academics as a general matter.  When, indeed, ‘do this sh*t change?’ Whatever that ‘sh*t’ is, does anything that we do affect it all?”

The third post in this series will present the remainder of the professors’ responses and conclude. 

 

Posted by Dawinder "Dave" S. Sidhu on September 7, 2011 at 02:43 AM in Television | Permalink | Comments (0) | TrackBack

Saturday, September 03, 2011

The Duty of Law Professors to "Change Sh*t" -- Part One

The Wire, as I've noted, is a critically-acclaimed, now completed HBO television series that explored the interconnected relationship between the drug trade, law enforcement, political establishment, public schools, and media in Baltimore, Maryland.  The series exists as compelling commentary on how institutions reinforce and perpetuate social problems in the city, and relatedly how difficult it is to achieve meaningful reform given these entrenched systems and interests.

Academics are among the social agents woven into The Wire’s depiction of the status quo and comment on the improbability of progress.  In season four of the series, Dr. David Parenti, a sociology professor, teams up with Howard “Bunny” Colvin, a former Baltimore police commander, to develop a pilot program on behaviorally disruptive middle-school students.  The two seek to understand why certain youth become “corner kids,” those who will endure lives of drugs and violence to the extent they are not jailed or killed, rather than “stoop kids,” those who generally give way to social order.

In a telling moment in the series, Dr. Parenti and Colvin discuss the premature end of their pilot program.  Dr. Parenti looks forward to the possibility that his research from the program will turn heads in the scholarly community.  “What we publish on this is going to get a lot of attention” from “other researchers and academics,” he anticipates with excitement.  Colvin is despondent.  He responds incredulously: “Academics? What, they gonna’ study your study?”  Shaking his head, Colvin wonders out loud, “When do this sh*t change?”

This scene suggests that academics are more than subjects portrayed in The Wire, but are among the targets in the series’ broader critique of those who spin their wheels in rarefied spaces while the marginalized continue to languish below.  More specifically, the exchange appears to suggest that professors generally are content with examining societal problems with one another, within the confines of the academy, irrespective of whether such analyses lead to tangible advancements in social welfare beyond the university gates.  If so, this paints a rather dim portrait of professors’ interests or regard for those on fringe of American society.

This exchange, though fictional, reflects an ongoing debate regarding the social relevance of scholarship and the proper role of professors in our society more generally. Similarly, law professors have been criticized for engaging in intellectual activities designed only for their own consumption and for being too far removed from the “real world.” Colvin – and those behind The Wire – would seem to share these assessments that professors, including law professors, are talking to each other and not effectively serving those outside of the academy.

The exchange between Dr. Parenti and Colvin also triggers a meta-inquiry about the law professors, myself included, who are interested in The Wire.  On this site, a law professor called The Wire a “spectacular, devastating, unbelievable, gritty epic masterpiece.”   He added, “It’s truly television at its best.  It’s television that has informed me and changed me.”  Also here, a law professor noted that, of the television shows he’s watched regularly, The Wire boasts “three of the greatest, most unique and memorable characters in television history” and “is probably the best in terms of quality of any show[.]”  On Volokh Conspiracy, another law professor wrote that The Wire was “simply the best cop show I had ever seen on television.”  In addition, law professors have explored the series in law review articles and the series also has formed the basis for courses at law schools. 

The question becomes whether us law professors who have paid attention to The Wire in academic writings or in the classroom setting are failing to touch or even marginally mitigate the very social pathologies that were depicted in the series.  In other words, are we giving life to and validating the concerns Colvin seemingly had with Dr. Parenti and academics at large?  If so, the irony is as clear as it is depressing: law professors are comfortable with focusing only on scholarship and academic activities even when the underlying subject matter is the harsh realities of drugs, crime, and civic decay that desperately call out for meaningful solutions, and even when they are apparently tipped off -- through this scene -- that academics are engaging in work that matters only to them but not on the ground.

In subsequent posts, I will examine the proper role of law professors in society through the lens of this scene, and whether those of us law professors who are actively drawing from The Wire in academic circles are simply proving the scene’s point, namely that professors merely talk to one another without enlarging social welfare in America’s most neglected or otherwise underserved parts.

Posted by Dawinder "Dave" S. Sidhu on September 3, 2011 at 01:31 PM in Teaching Law, Television | Permalink | Comments (10) | TrackBack

Tuesday, August 30, 2011

For those recently hooked on Westeros

Dave Hoffman has a fascinating interview with George R.R. Martin from 2007.  You can find the interview, and the post about it, here

Posted by Matt Bodie on August 30, 2011 at 05:45 PM in Culture, Television | Permalink | Comments (1) | TrackBack

Friday, August 12, 2011

Workplace "Segregation"?

Earlier this year, the ABC News show, "What Would You Do?," aired a segment in which three job applicants – a Jewish man with a yarmulke, a Muslim woman with a headscarf, and a Sikh man with a turban – were denied employment at a restaurant, in front of and within earshot of customers, specifically because the applicants’ religious attire did not conform to the employer’s dress code policy.  The purpose of this hidden camera show is to ascertain how unsuspecting members of the public will respond to an underlying problematic situation played out by actors.  In this case, the objectionable situation designed to illicit a public reaction was the fact that the applicants were rejected solely because of their religious appearance.  For example, the restaurant manager informed the Sikh applicant that he could not be hired “looking the way you look” because the turban could be considered “threatening to anyone sitting here eating.”

Some patrons  took the bait -- they voiced concern that the restaurant manager’s decision was discriminatory and unlawful.  One witness, for example, likened the treatment of the Sikh applicant to discrimination on the basis of race -- can the manager “say the same to me about my color or my religious beliefs, it’s the same thing.” Another troubled witness told the manager, “I’m not sure you’re aware how illegal this is…. You’re lucky there are no lawyers around."

As it turns out, the assumption that such conduct is inconsistent with the law is a mistake.  For years, federal courts have enabled employers to engage in the behavior depicted in this broadcast.

Where, as with the above scenario, there is a conflict between an employee’s religiously-mandated appearance and an employer’s interest in avoiding possible negative customer reactions to the religious employee’s identity, federal courts are allowing employers to resolve this conflict by placing the religious employee out of public view or by refusing to hire him or her altogether.  In legal terms, courts faced with Title VII claims are reasoning that placing an employee with religious attire in the back is an acceptable “reasonable accommodation” of the employee’s religion or that to hire such an employee may result in economic costs that amount to an “undue burden.”

My recent research argues that these courts have it wrong.  It seems to me that the text of Title VII forbids such employer action and that this conduct reinforces majoritarian norms and perpetuates harmful stereotypes as to who the public wants to interact with.  Reserving social spaces for the familiar or likeable religions is problematic.  Moreover, other contexts, particularly principles from the civil rights movement, also point to the discriminatory nature of this employer conduct. 

While this position may not be controversial, what may serve as a lightning rod is how the aforementioned employer conduct is being described.  In particular, if an employer places in the back an employee who looks different on account of his religious attire, or refuses to hire such an individual, can this be fairly termed "segregation"?  In other words, it seems, the employer is segregating an employer in the workplace (by placing him or her away from the public) and from the workplace (by refusing to hire him or her).   Title VII expressly prohibits "segregation" and language in the latest Workplace Freedom Restoration Act refers to this conduct as "segregation."  The term is charged, but the question is whether its use is accurate or prudent in this context.

Posted by Dawinder "Dave" S. Sidhu on August 12, 2011 at 12:36 PM in Employment and Labor Law, Religion, Television | Permalink | Comments (0) | TrackBack

Saturday, August 06, 2011

The Urban Underclass and the Constitution

Those close to me are well-aware of my fascination with "The Wire," an HBO television series (2002-2008) that explored the relationship between crime, drugs, law enforcement, politics, public schools,  and the media in Baltimore, Maryland.  For example, I've given DVDs of the complete series to a friend as a housewarming gift.  When the ABA Journal omitted "The Wire" from its list of "The 25 Greatest Legal TV Shows" (and from its list of honorable mentions), I was sufficiently agitated such that I wrote a letter to the editor, complaining that while "The Wire" suggested that the devastating consequences of various structural failures on those in Baltimore were going unnoticed, it seemed rather ironic and unfortunate that "a national journal of attorneys overlooked Baltimore's story too."  (To the journal's credit, the letter was published.)  In my view, "The Wire" is an amazing series because it compellingly demonstrates how several institutions reinforce and perpetuate social pathologies in the city, how the dire circumstances of those in the city call out for solutions, and yet how entrenched systems and interests render progress improbable.  It may be the closest we have to a documentary on the various actors and entities that spin their wheels while some urban residents continue to languish.

My latest research focuses on whether the conditions of the urban underclass -- as depicted in "The Wire" and as studied by William Julius Wilson, Sudhir Venkatesh, and others -- implicate the Constitution, specifically the Thirteenth Amendment.  The term "urban underclass" is not without its controversy or shortcomings, but it is generally understood to refer to those who are marginalized economically and spatially in American inner cities ( the term "inner city," too, has its definitional issues).  The Thirteenth Amendment was designed to formally end slavery and eliminate the vestiges of this institution, however it has been read to apply to modern circumstances and to guarantee individuals some minimal ability to participate in society. Sociological works appear to demonstrate that the urban poor are not meeting this basic threshold, with some scholars even suggesting that the urban poor are “extraneous” to our economy and society.  Sociologists further make clear that the urban poor are “trapped” economically and in their physical locations, and that urban poverty is transmitted over generations.   I argue that the limited economic opportunity and physical liberty of the urban poor, where the urban poor are disproportionately African-American, and where at least some of the conditions of the urban poor stem from overt discrimination, activate the legal protections contemplated by the Thirteenth Amendment.  It seems that the sociological analyses of the urban poor can be plausibly translated into a legal basis for relief.  I suggest in particular that Congress may invoke its broad enforcement powers under the Thirteenth Amendment to enact remedial action that will give the urban poor a meaningful chance to compete in mainstream society. 

This week, Mayor Bloomberg announced a $127m program, the "Young Men's Initiative," which aims to provide greater opportunity to black and Latino males.   While I have not yet studied the details of this program, I do commend the general (and apparently genuine) interest of an actual mayor to address the limited opportunities possessed by some members of our society.

Posted by Dawinder "Dave" S. Sidhu on August 6, 2011 at 09:18 PM in Constitutional thoughts, Television | Permalink | Comments (14) | TrackBack

Thursday, July 21, 2011

What Makes it Okay for Reporters to Trespass After Disasters?

Brian_Williams_Tuscaloosa
Brian Williams, reporting in April 2011 from tornado-ravaged Tuscaloosa, Alabama. In the bottom image, Williams is bending over to inspect a bride-and-groom cookbook apparently given to the newlyweds who had occupied the house. I should say that, in this particular clip, Williams seemed to know so much about the residents, it's plausible they were consulted and gave permission. (Top image from an NBC Special Report, next two images from Charlie Rose.)

Am I alone in being bothered by the fact that so many television news reporters, on the scene of a natural disaster, consider themselves at liberty to traipse through people's ruined homes and buildings, rifling through what they find there?

I recall after the Tuscaloosa tornado in April 2011, Brian Williams went into some home – or what was left of it – and found a DVD of University of Alabama football in the remains of someone's home. He picked it up and attempted to say something poignant about it on camera. It struck me – why does he think he has the right to do that?

Maybe television reporters sometimes get permission from owners before they go into homes or buildings. It's possible Williams did in that circumstance. But I certainly doubt that's the custom and practice. A common lack of permission also seems evidenced by the way reporters often speculate about who may have lived there and what may have happened.

As my fellow torts professors know, the law of trespass to land is quite strict. No damages are needed to make out a claim. And there's no need for bad intent. Plain-old going on to someone's land is actionable. That doctrine reflects our society's deeply felt commitment to the integrity of a person's land and domicile.

I'd bet most evening news viewers imagine there's some sort of legal privilege for reporters to do this. But, of course, there's not. Unless they've gotten permission from the lawful possessor, it's trespassing. It's also invasive. Of course it's not exactly the same as News of the World's phone hacking, but it is certainly similar.

I know, of course, why it's not a scandal. It's not done surreptitiously. Moreover, there's now a well established practice of post-disaster rummaging by TV news crews. We've become inured to it. Granted, it's also probably harmless. In fact, it's not hard to argue that it's beneficial, since we generally consider it to be a good thing when the journalistic press offers in-depth reporting on issues of public interest. But I'm not convinced that makes it right.

 

Posted by Eric E. Johnson on July 21, 2011 at 10:17 PM in Property, Television, Torts | Permalink | Comments (1) | TrackBack

Monday, June 13, 2011

Who would be your graduation speaker ...

if you could have anyone do it? Here's Conan O'Brien giving the commencement address at Dartmouth:

 

Posted by Jeff Yates on June 13, 2011 at 09:21 AM in Culture, Current Affairs, Information and Technology, Law and Politics, Odd World, Television, Travel | Permalink | Comments (0) | TrackBack

Thursday, June 02, 2011

Your favorite trial performance in a movie

I'd like to start by thanking Dan Markel and the rest of the Prawfs gang for inviting me to guest blog this month. I thought I'd start off with the fun post, although that implies that my remaining posts will be serious --  which is not something that I'm willing to commit to.

What is your favorite trial scene performance by an actor in a film? I imagine that certain iconic performances come to mind such as Gregory Peck as Atticus Finch in "To Kill A Mockingbird." I am hoping that people will rccall some not so famous performances as well as the well-known ones. One of my favorite trial scene performances is by a not-so-famous actor, Lane Smith. Smith appeared as a character actor in a good number of television shows and movies during his long career, including "Kojak," "The Rockford Files,"Dallas," "Red Dawn," "My Cousin Vinny," and "The Legend of Bagger Vance," among others. However, it was his role as Panama City, Florida criminal  defense attorney Fred Turner in The Hallmark Hall of Fame's "Gideon's Trumpet" that caught my attention.

In addition to its star, Henry Fonda (playing the title role), the made for TV film boasted a number of other good actors, including John Houseman (as Chief Justice Earl Warren), Jose Ferrer (as Abe Fortas), and Faye Wray in her last film role. I could be wrong, but I believe that Harry Dean Stanton also makes an (uncredited) appearance. The film can be a bit hard to find but I have a taped version that I use in class on occasion - I guess I'll be in trouble when they quit equipping classrooms with the old VCRs. I am a bit reluctant to post the scene, which is available on Youtube, as it is a bit long and comes in two parts. However, I think that it highlights very well the difference that a good lawyer can make in a trial outcome. But enough about my favorite trial performance in a movie - what's yours?

Posted by Jeff Yates on June 2, 2011 at 01:50 PM in Criminal Law, Culture, Film, Teaching Law, Television | Permalink | Comments (8) | TrackBack

Monday, May 16, 2011

Fed Courts on TV?

Last night on AMC's The Killing, a character cites to and discusses Hunt v. Washington State Apple Advertising Comm'n, the leading Supreme Court case on associational standing, in arguing that a midnight basketball program has standing to challenge the city's withdrawal of its funding (in the story, this is a political ploy by the incumbent mayor to get at his opponent, who is a big supporter of the program). I am not sure Hunt actually is relevant here, since the organization would be suing on its own behalf, not on behalf of its members. And it is presented as this obscure case that the protagonist finds only through careful legal research that gives him the idea for a lawsuit--as if he never thought of a lawsuit until he found this one case. Part of me thinks the writers threw it in there only because the show takes place in Seattle.

Later, we find out the judge rejected the standing argument and denied the request for an injunction. But only because the judge assigned to the case was the mayor's old fraternity brother, thus furthering television's meme that judges are corrupt and craven political actors who ignore the law and protect their political cronies.

Still, Art. III standing on basic cable. Who'da thunk?

Posted by Howard Wasserman on May 16, 2011 at 09:04 AM in Civil Procedure, Culture, Howard Wasserman, Television | Permalink | Comments (1) | TrackBack

Tuesday, August 31, 2010

My Devalued Marriage

California_capitol

I recently kissed my wife good-bye at the airport and took off for California, where, just days before, a federal district court had declared a ban on gay marriage to be unconstitutional.

Many of those who support the ban on gay marriage argue that marriage between a man and a woman will be devalued if same-sex couples are allowed to marry. "Huh?" you may be thinking. "How could that possibly be the case?" 

I know, it sounds absurd. But amazingly enough, though it defies logic, I actually noticed the effect as soon as my plane crossed into California airspace. It was weird, but I could actually feel my marriage devaluing.

It doesn't seem like all that long ago that I married my wife Kit in Santa Monica, Calif. We had a caterer, a florist, a bunch of guests, a cake – all that stuff. Kit got her hair done and wore a special dress for the occasion. I wore a tux. At the time it seemed extremely special. But being back in California after Judge Walker's ruling, it all felt so ho-hum, so devalued. Riding the BART train from the airport, I found myself wondering if it would have helped if we had hired a live band for the reception. It was hard to know.

That night I actually had trouble sleeping because my wedding ring felt uncomfortable and foreign on my hand.

Here's the really weird thing – while I was experiencing all this marriage devalument, I wasn't even thinking about the court case! It didn't hit me until I was flipping around through the cable news channels. That’s when I figured it out: It was the Equal Protection Clause! That was why my marriage felt so dull and generally unspecial.

But how could this happen? How could two dudes (or dudettes) getting married to each other possibly affect my marriage?

Well, I was fortunate enough to see a person interviewed on one of the cable shows who explained it. This guy put it in language that I, as a law professor, could understand. He pointed out that counterfeit currency devalues regular currency. (I had to admit that was true.) So, he reasoned, gay marriage, as a kind of counterfeit marriage, devalues everybody's regular marriages.

The force of this argument is really undeniable. Tried though I have, I can not find even the tiniest hole in this guy’s analysis. In fact, the more deeply you think about what he was saying, the more sense it makes. It's really one of the smartest things I've ever heard anyone say. It shows an uncommonly strong grasp of economics, sociology, and some very basic rules of logical thinking. Wow.

Anyway, it got me to figuring, we should not only amend the Constitution to ban gay marriage, we should also take affirmative steps to strengthen the institution of traditional marriage.

Gold bullion coins Mmmmm, gold.
(Images courtesy U.S. Mint.)

U.S. currency was strongest back in the 1960s when we were still on the gold standard. Ergo, we should put marriage on a gold standard. Think about it: If every married heterosexual could, at any time, freely convert his or her spouse into a specified quantity of gold bullion, then every person who is married would value their marriage more. Divorce rates would plummet. That's just logic.

A lot of the same conservative talk show hosts who are opposed to same-sex marriage are also enthusiastic supporters of returning America to the gold standard. That’s why it’s such a public service for radio talk show hosts to tell us about important gold investment opportunities. It is my hope that thought leaders like Glenn Beck and Sean Hannity will realize the synergy here and support the adoption of a marital gold standard.

My own personal story has a happy ending. I got through the whole trip without trying to hook up with any of the women around me. Now, that wasn't because my marriage felt like it was worth anything at the time. It's undoubtedly because I was attending a conference of law professors. That's its own libido kill. 

Most importantly, now that I am safe and sound back home – outside of the jurisdiction of California – my marriage once again feels like it is valuable. (Granted, not as valuable as it would be if I could take Kit down to a federal reserve bank and turn her in for gold, but, you know, still pretty valuable.)

Posted by Eric E. Johnson on August 31, 2010 at 09:52 PM in Constitutional thoughts, Current Affairs, Television, Travel | Permalink | Comments (6) | TrackBack

Monday, August 16, 2010

Fun with "Mad Men"

I have to flag last night's Mad Men, which touched on three things of interest to my scholarship and blogging.

In the opening scene, Don Draper and Roger Sterling are on a conference call with the head of "Lucky Strike" cigarettes (their largest account), discussing how to handle new Federal Trade Commission limitations on cigarette advertising, limitations (including a ban on broadcast advertising) that today would trigger a First Amendment challenge. But in 1965, the Supreme Court still had not recognized First Amendment protection for commercial speech. So the only question was how to advertise around the prohibitions.

One limitation was a ban on using athletes in advertisements, so the discussion was what else they could do. Roger suggests bowling; there is silence, then Roger says "Yes, bowling is a sport." (And it is: large motor skills, objective scoring, competition). He then suggests horse racing and insists that is a sport (It's not: The horse is the machine doing the work); there is silence, then Roger says "No, the jockeys will be smoking."

Finally, Peggy goes to an art gallery to see an exhibition by a photographer/filmmaker who works with nudes. The party is broken-up by a police raid on a place showing "obscene" movies. Not surprising, in those pre-Miller days.

Fun stuff all around.

Posted by Howard Wasserman on August 16, 2010 at 02:24 PM in Culture, Howard Wasserman, Television | Permalink | Comments (0) | TrackBack

Monday, August 02, 2010

There's law . . . And there's life

I regularly criticize the portrayal of law and lawyers in popular culture. So when culture gets it right, I should acknowledge it. I give you Friday Night Lights, which had a great piece of law (and lawyers) in action last week.

For those of you who do not watch one of the best shows on television: One of the season-long plots is that a student (at East Dillon), Becky, became pregnant by Luke, one of the East Dillon football players. She went to see Tami Taylor, the Coach's wife and the principal at West Dillon at the Taylor house, seeking advice. Tami spoke to her and the request of one of Coach's former players. Tami talked to her about adoption; when Becky asked what she could do if she didn't want to have the baby, Tami said she could give her brochures. She also encouraged Becky to speak with her mother. Becky eventually went, with her mother, to terminate the pregnancy. Luke's mother finds out that Tami had given Becky advice and that Becky had an abortion; she complains (mistakenly telling people that Tami had told Becky to have an abortion) first to the School Board and then to the local paper, sparking anger and protests from many town residents. The Board tells Tami that she will be fired unless she issues a Board-drafted public statement apologizing for her handling of the situation.

Tami goes to speak with an attorney, who tells her that she has a strong wrongful termination case. (Actually, I had been thinking about whether she might have a pretty good First Amendment claim, since she spoke completely out of her role as a principal--functionally equivalent to giving advice to a family friend. That claim probably runs aground because the advice she gave to one pregnant girl probably was not on a matter of public concern as required for a successful public-employee speechclaim, unless all discussion of abortion, even a private one-on-one conversation, is so hot-button as to always be of public concern). But the lawyer goes goes on to point out other considerations that must go into her decision--the case could drag on for years (that's somewhat overstated--an individual claim does not drag on that long in a fairly discrete individual action--but not entirely untrue), she probably would not be able to get a job as a principal in the meantime, and she probably could not win (or want) reinstatement at the end of the day.

The problem, the lawyer tells her, is that "there's law . . . and there's life." This is something that is usually not portrayed in the media, where the failure to sue is an indication that a claim would have failed (i.e., "If the accusations weren't true, why aren't you suing?"). And it is something we may not always get across to our students, especially when we teach via judicial opinions in cases that, by definition, were brought. Not every potentially meritorious case will or should be brought. One's decisions to sue or not (or to settle or not) are driven by a host of considerations. It is easy to say she should stand up for her rights and her principles and see them vindicated. But, in the meantime, what does she eat and how does she pay for her daughter's college? That must weigh in the balance where she has an option--apologize--that allows her to keep her job. I did think it was interesting that the writers sent her to a private employment lawyer (who had a deer hear on his wall) rather than the ACLU--which raises a whole set of other issues about cause lawyering, etc.

Some accurate legal reality from a show about football . . . and life. Ironic, since, according to my friend who is a high school football coach, Coach Taylor is a really lousy coach.

Posted by Howard Wasserman on August 2, 2010 at 08:08 AM in Culture, Howard Wasserman, Television | Permalink | Comments (11) | TrackBack

Wednesday, July 21, 2010

A Proposed Constitutional Amendment: Protecting the Right to Enjoy Governor Scandals

Early_out_governorsIt's really nice to see Rod Blagojevich back in the news. That man is an American gem. But it's not the same now that he's no longer a sitting governor. I'm still mad at Illinois for impeaching and removing him. It was like the end of the first season of The O.C.; you just stare at the television trying to come to terms with the fact that it's really over.

Dang it! I am sick and tired of governors resigning or getting impeached just when they create fabulous national news. Enough is enough!

Look, news of oil spills is horrible. It's important, of course, but it's not a lot of fun to watch. The same is true of most news. But scandalized, out-of-control, going-rogue governors – that's delicious stuff.

When a state gets rid of a sitting governor who has become a scandal magnet, that state gains. Sure. But the other 49 states lose out. The last days of the Blagojevich, Sanford, and Spitzer administrations were halcyonic. And with Palin, it looked like that investigation was about to heat up and things were just about to get interesting, and then she ended it.

Even though Palin and Blagojevich have had an afterlife on cable talkshows and the internet, at their best, they're merely amusing. But when they were in office, they pushed the needle to en fuego. You just can't refudiate that. 

Thus, I propose the following as the 28th Amendment to the Constitution of the United States: No governor of any state may resign or be removed before the end of the term of office unless two-thirds of cable television audiences so consent.

(Palin photo CC-BYTherealbs2002)

Posted by Eric E. Johnson on July 21, 2010 at 08:14 PM in Constitutional thoughts, Current Affairs, Television | Permalink | Comments (3) | TrackBack

Tuesday, July 06, 2010

What Television Show Do Prawfs Like Best?

230_Watching_television_1958 What is the all-time favorite television show of law professors? 

Let's do a scientific* survey. (I have a prediction for who will win, but I don't want to say just yet.)

First, we will need nominations. Please put yours in the comments. 

Also, of course, you should feel free to gloat in the comments that you don't watch television. (Neither does Rachel Maddow, which is why, despite the fact that I like her, I was forced to put her on my AXIS OF EVIL.) 

At least we know Orly Lobel watches television – she wrote a gallant defense of the box here.

I personally don't watch TV very much at all. But it's hard to completely avoid seeing it. I mean, after all, it is babysitting our children.

______ 

* I will figure out some way to make it scientific later.

Posted by Eric E. Johnson on July 6, 2010 at 07:14 PM in Television | Permalink | Comments (20) | TrackBack

Friday, June 18, 2010

A Compendium of Media & Entertainment Law Materials

Banner for compendium of materials for media and entertainment lawI've put together a compendium of materials for courses on media law and entertainment law, and I've put it up on the web so that other teachers can make use of it. These are materials that I've used, or plan to use, in my own courses.

There are some judicial opinions in there. Judicial opinions are the staple of law-school reading. But the best parts of the compendium are the documents that are not judicial opinions. 

I'm a strong believer in assigning readings other than judicial opinions. So my compendium includes contracts, demand letters, and various litigation pleadings. These documents are especially valuable reading in entertainment law and media law, where industry custom, intimidation tactics, creative lawyering, ignorance, bullying, and fear all combine to play a role that rivals that of the law itself.

In the compendium, you will find a recording contract and a management deal for Mötley Crüe, scarily one-sided agreements for reality television participants (including Kid Nation), a television distribution deal, dressing-room requirements rider, endorsement deal, and cease-and-desist/demand letters written on behalf of Lindsay Lohan, Jennifer Aniston, and Catherine Zeta Jones. There are also some complaints, and the difficult-to-classify agreement between Britney Spears and Kevin Federline over their fake wedding ceremony.

If you use any of these materials in your class, I'd be grateful if you dropped me a note to let me know.

[Cross-posted on Pixelization.]

Posted by Eric E. Johnson on June 18, 2010 at 05:18 PM in First Amendment, Intellectual Property, Teaching Law, Television | Permalink | Comments (0) | TrackBack

Thursday, May 27, 2010

Last minute call for David Simon fans

Fans of the Wire and Treme who are also attending Law & Society may want to check out "Roundtable -- And All the Pieces Matter . . . Thoughts on 'The Wire'".  It's chaired by Susan Bandes, and the panelists are Alafair Burke, Bennett Capers, Jeffrey Fagan, and David Sklansky.  Get there on time, as David Simon is scheduled to drop in on Skype.  The roundtable will be held in the Renaissance's Grand Ballroom III today at 2:30 p.m. Central.

Posted by Matt Bodie on May 27, 2010 at 02:07 PM in Criminal Law, Culture, Television | Permalink | Comments (1) | TrackBack

Tuesday, December 15, 2009

Illegal Motion?

My wife loves this clip and it has grown on me. But I must ask the football-rules question: Is this Illegal Motion?

Posted by Howard Wasserman on December 15, 2009 at 03:45 PM in Culture, Howard Wasserman, Sports, Television | Permalink | Comments (7) | TrackBack

Thursday, October 22, 2009

Lawyer Wins “Most Irritating TV Character” Nod

Law-order__1256064449_3317
It’s not who you think. Yes, Law & Order’s
Jack McCoy is on the list, but this character made it to number one. I must admit, it’s not a choice most people would disagree with, and I agree that there is a fine line between being delightfully quirky and just plain annoying. Annie Hall is a film-based example of that conundrum. In contrast, there have been many great lawyer characters on television. So, my question of the day is, who are some of the best lawyer characters who have ever been featured on the small screen?

Posted by Kelly Anders on October 22, 2009 at 01:48 PM in Television | Permalink | Comments (10) | TrackBack

Tuesday, April 28, 2009

Law Professors: Lou Dobbs is on Our Side

Lou_dobbs A couple of weeks ago, Lou Dobbs discussed what he called "an apparent threat to America's sovereignty," namely certain remarks made by U.S. Supreme Court Justice Ruth Bader Ginsburg. I will warn you, her words are shocking. But I feel you need to see them. This is the actual transcript of what she said at a symposium at the Mortiz College of Law at Ohio State University.

RUTH BADER GINSBURG, SUPREME COURT JUSTICE: Why shouldn't we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor.

Don't you see? Lou Dobbs is not just fighting against foreign influence, he is fighting for law-review-article influence. 

This is, indeed, a truly grave "threat to America's sovereignty." We need America's sovereignty to continue to be held, as it always has been, by America's law professors.

I hope all of you professors will join me in roundly condemning Justice Ginsburg and supporting Lou Dobbs – as he has supported us. And if Justice Ginsburg continues her assault on America's sovereignty, let us band together and fight back. We have the power write a bunch of really confusing scholarship about the Third and Ninth Amendments, and we should not be afraid to use it!

Posted by Eric E. Johnson on April 28, 2009 at 05:34 PM in Constitutional thoughts, Television | Permalink | Comments (2) | TrackBack

Monday, April 06, 2009

Media depictions of lawyers and the civil justice system: Not good

For those of you looking for television breaks, may I recommend the new season of In Treatment on HBO (initial airing Sunday from 9-10 and Mondays from 9-11, with lots of reairings throughout the week). A running plot line this season will be a malpractice lawsuit brought against the central character (a therapist) by the estate of one of his client's from last season, a Navy aviator who killed himself upon return to duty, the therapist having signed off that the patient was fit and ready to return. The lawsuit was the main focus of the first half-hour episode (titled "Mia: Week One").

And how were law, lawyers, and the legal process depicted? Not well. Let us count the ways:

1) The lawsuit was served by the deceased patient's father (presumably the executor of the estate) by knocking on his door in the middle of the night, berating him, then stuffing an envelope in his chest and announcing "I told them I wanted to serve the summons personally." Um, no.

2) At his first meeting with his lawyer (presumably not more than a few days or a week after being served with the lawsuit), we learn:

a) There is a "hearing" in 8 weeks, at which the Judge will decide whether the case will go to trial; of course, there is no mention of how or why this hearing will take place, who requested it, or what the hearing will be about. Can the defendant at least Answer the complaint first?

b) The attorney thinks the case is meritless and wrong as a matter of law. But it all depends less on the law and more on the judge. A hometown judge might feel sympathy for the patient's young children and give the plaintiffs their "day in court." Oh, and the defense will "find" an expert to testify that he met the standard of care, while the plaintiffs will "pay" someone to say he didn't. Judges and the courts are far more plaintiff-friendly on TV (at least when the show's star is the defendant) than case statistics suggest. Except, of course, for the "completely incompetent" brain surgeon who operated on the wrong side of a patient's brain, but prevailed when represented by this lawyer. In any event, Legal Realism is never so alive as on television.

c) The lawyer says the plaintiff's lawyers are right now "deposing" everyone the patient ever knew. No mention of why she (as the defense lawyer) was not at those depositions so she could, you know, ask those witnesses some questions.

d) The therapist seems genuinely surprised to learn that he should have been taking notes and keeping records about his treatment of this patient. My wife (a mental-health professional) says that a competent therapist unquestionably would take notes and keep records of treatment--if for no other reason than to be able to bill the insurance company. From a legal standpoint, representing a client who has not taken notes does not provide an easy case to litigate. On one hand, there is nothing damaging to turn over in discovery; on the other, it is not going to be easy to show that your client met the standard of care when you have no proof of what, exactly, that care entailed (statements for purpose of medical diagnosis are admissible as a hearsay exception).

e) The lawyer, we quickly find out, is a former patient of the therapist/client, having seen him twenty years before when she was a struggling law student. She "grabbed" the case when it came into the office. Her therapy had ended suddenly when the therapist relocated without telling her and she remains unhappy about that fact. As a matter of medical ethics (Jennifer tells me), a therapist should under no circumstances have a former client represent him. As a matter of legal ethics, a lawyer should not represent her former therapist--especially if she is still angry at the therapist for abandoning her treatment (and her).

f) The lawyer interrupts their conference twice to talk to her father on the telephone, once about the color of an outfit she bought for him.

g) The lawyer confesses that although she seems to have a successful career because she works in a tall building, in fact she hates the windows that don't open and the jackhammers that never stop. And when she wins a case (and she specializes in hopeless med mal cases, such as the brain surgeon), she gets drunk with her gay secretary, then stumbles home to her one-bedroom condo and prays that she can fall asleep. Needless to say: a) That is not something one should be sharing with a client, especially in a first conference and b) She is not doing any of her clients any good if she is that miserable with her personal life and not doing something about it.

3) The therapist seems lost and angry about the lawsuit and the legal process, such as the suggestion that he should have been keeping treatment notes and records. It is true, of course, that we know more of the law than your non-lawyer client and we are expected to explain the process and shepherd them through. But most professionals (such as therapists) who become involved in lawsuits are quite attuned and knowledgeable about the law and what they ought to do to help themselves within the legal process. That does not mean we are not obligated to provide counsel and guidance; it means only that our clients are probably sharp and can be more helpful to us (and to themselves) than this show suggests.

4) Perhaps more troubling is the utter contempt the therapist repeatedly expresses for the legal system. Obviously, he is angry about being sued and believes he is being wrongly accused. But the disrespect for the process is troubling; after all (we tell out students), the reason to have procedural rules is that everyone accepts the outcome as just, even if adverse. And hey, our guy has been a practicing therapist for 25+ years--he never once had to sue (or even threaten to sue) a client for non-payment? I bet he liked the legal system just fine then.

Jennifer and I watched the show last year, even though (or perhaps because) the show mostly did a poor job of showing how therapy should work or how a therapist should act. Of course, media depiction of lawyers and the legal system long has been a pet peeve of mine. The writers of In Treatment have decided to kill two birds with one stone this season--they are going to drive us both up a wall simultaneously.

Posted by Howard Wasserman on April 6, 2009 at 07:08 AM in Howard Wasserman, Television | Permalink | Comments (10) | TrackBack

Friday, March 13, 2009

TV depicting the law, inaccurately

At CoOp, Corey Yung writes about the increasing inaccuracy of legal shows on TV, wondering whether Law & Order still employs lawyers as consultants and how that inaccuracy affects the understanding of law and the legal system that our students bring into the classroom. I long have shared this distaste for the often-stunningly incorrect depiction of law, lawyers, and the legal system. But this did remind me of my one brush with legal television:

When I was clerking on the Eastern District of Pennsylvania, we got a call in chambers from a production assistant on one of the legal shows (I think it was "Boston Legal") asking for minute details about the set-up of the courthouse and the courtrooms. The woman wanted to know who is in the courtroom during hearings and trials, where everyone sits or stands, where the district court and court of appeals are located within the building, all the way down to (I kid you not) the color of the striped ties and blazers that the Court Security Officers wear at the security stations at the building entrances. It seems the show was planning a story arc in which the lawyers would represent a prisoner in a habeas action in the E.D.Pa., with an appeal to the Third Circuit. And the PA's job was to find out all the atmospheric details.

I told her what I could over the course of about three conversations. But the entire time, all I could think was: You are going to get the legal issues and procedures so completely and utterly wrong. Why are you bothering to worry about the direction of the stripes on the Marshal's tie?

Posted by Howard Wasserman on March 13, 2009 at 11:55 PM in Culture, Howard Wasserman, Television | Permalink | Comments (0) | TrackBack

Wednesday, March 04, 2009

Justice O'Connor on The Daily Show

Justice Sandra Day O'Connor was on The Daily Show with Jon Stewart last night and was quite good. She talked a bit about her courts-education program and a bit about the Court and she did a pretty good job riffing with Stewart. The couple times I saw her live (and I never have had the privilege of meeting her) she always seemed a bit self-serious (and at one point she corrected Stewart that they don't have trials, just oral arguments). But she seemed very relaxed in the interview. At one point, when Stewart referred to her as the "swing justice," she stopped him and said she did not like the term; he then referred to her as the "most principled justice" and she said "Much better."

Part One:

Part Two after the Jump:

Posted by Howard Wasserman on March 4, 2009 at 07:35 AM in Culture, Howard Wasserman, Television | Permalink | Comments (0) | TrackBack

Saturday, February 28, 2009

Operation Tough Love

Staying home on a Friday night and working, with occasional channel flipping or websurfing or even old fashioned just reading a book (i.e., not on a Kindle) is the tough love of my academic commuter marriage.  No wonder a segment on Dr. Phil (I swear it just happened to be on the TV when I turned it on) about the Maricopa County (Arizona) Sheriff’s Office’s recent “Operation Tough Love” seemed Tivo-worthy.

It turns out that on Valentine’s Day, Sheriff Joe Arpaio rounded up “deadbeat dads,” men who had failed to pay child support. The men were held on $10,000 bond in tents where the temperature reaches, according to Sheriff Arpaio, 148 degrees in the desert sun (Farenheit, I assume, as Sheriff Arpaio, who wears a tie pin shaped like a handgun and is known for making prisoners wear prison-stripes and pink underwear, doesn’t strike me as a Metric System sort of guy - he tends toward Medieval).

Local news reported that 72 people were arrested, but only 18 were deadbeat dads - the remaining 54 were arrested for other offenses, such as drugs (was this operation a pretext?).

This Very Public Event (read: spectacle, political stunt) seems like a waste of resources. It also seems counterproductive. What if Dad is deadbeat because, in our Meltdown Economy, he’s out of work? Will keeping him locked away unless he can pay really help his kids - given that this whole operation is (of course) “for the children”? I wonder why the sheriff isn’t instead out garnishing wages (if any) or seizing cars (if any) or homes (if any are even worth seizing these days)? Those methods seem more profitable.  The counter-productivity (and harshness) of Operation Tough Love is amplified when we consider that Dad could be injured in lockup by other prisoners, or from heatstroke, and that his brush with the criminal justice system could lead to job loss or stigma that harms his efforts to gain productive employment.  Consider also that the United States Supreme Court's expansive search-incident-to-arrest doctrine could lead to conviction for possessing various contraband found upon arrest, which under draconian drug laws could put the father in prison for years, rendering him truly unable to pay child support.

I Foley Admit that I don’t have the details of specific cases. Maybe these guys are notoriously deadbeat, and Sheriff Arpaio had tried all other means and failed.  But I wonder if the apparent political popularity of such roundups might cause them to become routine, leading to a de facto crime of poverty in our tough economic times - and yet another way for police to trigger their search-incident-to-arrest powers?

I don’t have a dog in this fight: I don’t have kids - another aspect, perhaps, of my own, two-city, Operation Tough Love.

H/T Dr. Phil.

Posted by Brian J. Foley on February 28, 2009 at 10:29 PM in Criminal Law, Culture, Current Affairs, Television | Permalink | Comments (1) | TrackBack

Monday, January 12, 2009

Federalism & Cop Shows: The Case of "The Wire"

After Rick Pildes and other colleagues assured me that HBO's The Wire transcended all TV formulae for cop shows, I rented the first season and watched it sporadically with my wife. Artistically speaking, the show is outstanding. But naturally I am more interested in looking at what the show has to say about fundamental matters -- which, for me (of course) means federalism.

Sadly, the Wire followed the usual formula. Local police are focused on the nitty gritty of drug crime, trying to save West Baltimore. The feds are better dressed, more humorless, and have a senseless set of bureaucratic norms that prevent them from helping out the beleaguered local cops who want to bring the feds in to help with surveillance against a local drug boss. The feds refuse, because there is not a federal interest: They need an international drug cartel, an anti-terrorism angle, or political corruption in order to have a statutory mandate. One of the Baltimore cops storms out, telling the Deputy U.S. Attorney in Baltimore that he is an "empty suit" and not "real police": The feds, he rails, would let "West Baltimore burn" because of red tape. Although the show does an admirable job of suspending any overt judgment about its characters' actions, the sympathies that the scene is intended to elicit are apparent as the federal agents sit around the table looking sheepish and feckless.

From any sensible functional theory of federalism, however, the feds in The Wire were right to insist on a genuine federal interest -- and The Wire's own plot shows them to be correct. During the first season, the primary reason that the City cops could not collect evidence against the drug boss was political corruption in the state legislature: Eliminate the corruption, and the Baltimore police would be able to get the wire taps they needed.

That a popular TV show would miss the moral of the importance of limiting federal police power suggests, more than any judicial decision or federal statute, that federalism may be well and truly dead in the public's consciousness.

Posted by Rick Hills on January 12, 2009 at 08:52 AM in Television | Permalink | Comments (10) | TrackBack