PrawfsBlawg

Better Call Saul--when Jimmy becomes Saul

Better Call Saul hit a significant story milestone last night. I want to consider a question (with spoilers) after jump: How bad a guy is Saul Goodman and is he qualitatively worse than Jimmy McGill?

Better Call Saul tells the story of how Jimmy "becomes" Saul, the "criminal lawyer" of Breaking Bad. Two strands make the story. The first is that Kim Wexler, the love of Jimmy's life, grounds him and keeps him from losing himself in his alter-ego. In mathematical terms, Jimmy-Kim=Saul. The second is that Saul Goodman represents a difference in kind, not degree, from Jimmy McGill. Jimmy is a fundamentally decent person and lawyer, committed to his clients and to doing justice; while he crosses ethical and legal lines, it is in service of a higher ideal and he always comes back around. Saul Goodman, by contrast, is an immoral, unethical criminal, engaging in all manner of wrongful conduct and out only for himself.

The story reached its point of no-return last night. Kim leaves Jimmy, wracked with guilt over the human costs of their scheme. The last seven minutes time-jumps some period for a montage of a Day-in-the-Life of Saul Goodman--he wakes up in a garish mansion next to a sex worker; has a horrible comb-over; wears loud suits; offers his companion a cereal bar on her way out the door; drives his Cadillac with LWYRUP plate; decorates the office with columns and the Constitution and an inflatable Statue of Liberty on the roof; and is fast-talking on the phone at all times. The idea--in reviews and interviews with show-runners--is that Kim bailed because she lacked Jimmy's complete moral flexibility, while Jimmy could compartmentalize and embrace his immorality, as Saul.

This story requires that Saul Goodman is truly worse than Jimmy McGill--that Saul exceeds the typical low-rung, fast-talking, as-seen-on-TV lawyer into outright criminality. Saul did illegal stuff on BB--arranging meth sales, money laundering. But we have watched Jimmy do illegal stuff on BCS. The story tells us that Saul is worse than Jimmy; the seven-minute montage is supposed to show us he is. But to my ear, they have not done it. Style aside, Saul in these seven minutes does not lawyer any differently than Jimmy.

Here is the substance of the phone snippets we hear from Saul:

    • Hard-ball negotiation in some type of PI case, emphasizing that soft-tissue damage gets his client paid regardless of X-rays and that it is better for the defendant to pay now or "bleed to death" in court.

    • Extended conversation with his secretary who updates him on new stuff. Here is Saul's side:

        • Something about telling his "my Zanex guy" "yes and today." It could be that he is representing someone charged with selling Zanex or it could be about getting drugs illegally; hard to say.

        • A new client charged with public masturbation; the joke is that Saul has multiple clients charged with that.

        • Ambulance-chasing to represent victims in a bus accident, obtaining victim names by leaning on a hospital employee he had represented on a DUI and planning a dramatic photo-op and media statement to try the case in public.

        • Scheduling matters for court for his convenience.

        • Listening to, and complaining about the sound quality of, a "Better Call Saul" radio spot. The ad is purely PI--insurance companies that will not pay for accident repairs, defrauded by brother-in-law, surgery gone wrong. He wants to stop the check for the spot and threaten the station with a lawsuit, preparing to stand for freedom of speech.

The montage and episode ends with Saul walking through a packed waiting room and into his office, then calling his secretary to send in the next client with "let justice be done, though the heavens fall."

This did not show us the so-called criminal lawyer. It showed an (exaggerated) version of the fast-talking smarmy, mostly-PI lawyer we have watched for six seasons.

My point, I think, is that, reviews and interviews are insisting on a premature conclusion. We have not reached the story's endpoint--fundamentally decent Jimmy has not become irredeemable Saul. The show has four more episodes, at least one featuring Walter White and Jesse Pinkman and likely showing further interactions between Saul and Gus' meth operations. My guess is some of these final episodes will show genuine Saul wrongdoing, something Jimmy did not and would not do. We are not (yet) there.

Succession finale does Bus Orgs--please explain

Succession's Season 3 finale aired Sunday. The big story development involves Bus Orgs stuff about which I know nothing and that I hope someone can explain. (After the jump to avoid spoilers)

First, a preliminary shout out to Mog. Mog is a cat in a series of children's picture books. The episode opens with Logan reading  Goodbye Mog to his too-old-for-this-book grandson. In the book, the cat dies but hangs around as a ghost to guide the family's new cat. Using this as the episode opening references the cliffhanger of Episode 8, which left people wondering whether Kendall had died. We got a kick out of the scene because someone gave us this book (and only this book--nothing else from the Mog series) when our kid was a baby and we all found it a bit freaky for a children's book. We joke about our four former pets "mogging" our new dog to help her become part of the family.

OK, here is the bus orgs part.

The episode centers around Logan selling the family company to a larger company, a move that likely would push Kendall, Shiv, and Roman out of positions of power. They attempt to stop it through the following move: The articles governing the holding company (which owns the family company) provide that no move can cause loss of family control without support of a super-majority of the owners of the holding company. The owners include at least Logan and his four children. It is not clear if there are others, if the requirement is a super-majority of shares or shareholders, and how many shares each person knows; what is clear is that without their support the deal cannot go through. We also learn that the super-majority provision was established as part of Logan's divorce settlement with his second ex-wife, Caroline (Kendall/Shiv/Roman's mother), to protect her then-minor children.

The plan fails when Caroline screws the kids over by doing something that enables Logan to move forward without his kids' approval. The question is what, exactly, she does.

• Caroline tells the kids that she renegotiated the divorce settlement (in exchange for something, likely Logan's help getting her skeezy new husband a peerage) to eliminate the super-majority requirement. But its that possible? Can the divorce settlement legally create (and then eliminate) the super-majority requirement in the company's organizing documents and rules? It seems to me the settlement would have required Logan to put that requirement in the company regulations, where it now remains. Changing the divorce settlement cannot change the company regs; the company must do that. And presumably Logan cannot change those regs unilaterally without some notice and approval of the three kids who now enjoy legal rights as adult owners.

• Maybe the regulation requires a super-majority of shares, Caroline remains an owner of the holding company, and she threw her shares behind Logan's share to create a super-majority of shares that can outvote those of the kids? That would make a bit more sense, although it has nothing to do with renegotiating the divorce settlement.

Is there some other explanation? Is this another instance of the show (in the eyes of some profs) playing fast-and-loose with how corporate governance operates in the interest of the drama of how badly Logan and Caroline treat their children (as Shiv says, "we just walked in on Mom and Dad fucking us")? The story obviously defies reality in that they negotiate and complete a major corporate acquisition in less than a day, from a temporary villa in Italy. But I am wondering if anyone understands the mechanism that made the plot work.

The Chair

My wife and I work in academia, so we are the target audience for Netflix's The Chair. We plowed through the six half-hour episodes and found it an enjoyable story and funny--worth watching and worth a second season. But neither of us shared the conclusion that it was Neflix's best drama in years or that it gets academia right. Take what follows as one point of view. Neither of us works in English or the Humanities and neither is a person of color, although my wife is a woman and holds a non-tenure-earning position, a different prevalent inequity in the academy.

I think my not loving the show more than I did comes to this: The show skewers multiple foibles of academia, but those foibles are inconsistent, the narrative has continuity errors among those foibles, and the hero's solution misunderstands or conflates them. Spoilers after the jump.

Here are the problems thrown in the lap of Ji-Yoon Kim (Sandra Oh) in her first days as chair:

    • A very senior career-Associate Professor (the first tenured woman in the department) has her office moved to a box without wi-fi in the basement of the gym. She also began her career paid $ 12k less than the men hired at the same level and has lived a career of having extra service thrown on her. She goes to the Title IX office several times, but finds the office ineffectual. Here is one continuity problem--the office move gets blamed on Ji-Yoon, although the move occurred before she took over  and seems to have come from the dean's office.

    • The dean orders Ji-Yoon to convince the three most-senior faculty (the woman above and two men, all white) to retire. New lines and other funds come only if she succeeds. The targeted faculty teach to empty classrooms, get bad evaluations, and seem to have stopped caring about teaching well or about engaging with their students. The woman spends time having someone hack into a database to identify the source of a negative review, then confronts the student in public (with a passionate defense of Chaucer that, if she made it in the classroom, might make her a more-engaging teacher). Two have stopped writing.

    • The mid-career superstar (and Ji-Yoon's sort-of love interest) Bill Dobson (Jay Duplass) has been drinking and taking pills and phoning-in his teaching and everything else in since his wife died a year ago. Late for class and hung-over while lecturing on fascism and absurdism, he drops a passing "Heil Hitler" with a Nazi salute (I have not decided how inexcusable that was in context as a light aside). Students surreptitiously record it and the video becomes a meme with a Nazi hat and uniform superimposed on him. That triggers a campus uproar, with students calling for his head while chanting about "getting Nazis off campus." A "town hall" on the campus quad goes off the rails. Some have criticized this story line as a caricature of student protests cum cancel culture, but the scene does not look so different from the Nicholas Cristakis or Bret Weinstein encounters. This  threatens to pull Ji-Yoon under when the student paper reports (disingenuously) that she imposed a "gag order" on the department to cover for Dobson.

    • The department's lone African-American woman is up for tenure and the senior prof (one of the three on the chopping block) chairing her committee is out to get her, seemingly because he resents her "modern" teaching methods that attract students to packed classrooms. Ji-Yoon exerts what I think would be inappropriate influence on that professor and that process, although in what we are supposed to see as a just cause.

    • Led by the three aging faculty Ji-Yoon is supposed to push into retirement, the department holds a no-confidence vote with Ji-Yoon sitting in the room, in consultation with the dean; the vote succeeds, 6-5. When she ceases to be chair, Ji-Yoon pulls a parliamentary move in naming the new chair that perhaps sets-up a second season. This is the show's other continuity problem. At times, characters speak about Ji-Yoon being chair by virtue of a departmental selection, while other times she is described as being appointed by and serving at the pleasure of the dean (the latter being how life works). And, of course, no-confidence votes are advisory to the dean. It would not take effect immediately after the votes are counted. Nor would we expect the dean to take seriously a no-confidence effort led by the three faculty members he had ordered the challenged chair to get rid of.

    • The student outrage against Dobson leads to a kangaroo proceeding that could not work against anyone, least of all a professor with tenure, putting aside that nothing he did would be grounds for losing tenure.

And here is the big spoiler and what rang false for me: In the finale, Ji-Yoon defends Dobson at the proceeding by going off on the dean's and the university's obsession with money and the way they ignore what the students want and need. But what the students want and need is what the dean (and central administration figures) are pushing for and Kim opposes or refuses to do: Fire the "Nazi" prof. Get rid of  the deadwood profs who do not care about teaching or their students, which offers the additional benefit of clearing a departmental obstacle to the tenure grant of the popular teacher. Spend money on areas of study that students are interested in--not the undersubscribed humanities but those that lead them to lucrative careers. The show is trying to tell a story of Kim standing up to power--but the power structure is actually on the side she purports to stand for. I do not believe this is the message the show intended to send. But by conflating inconsistent stories, that is the resulting story logic.

Again, we enjoyed the show. But I think we were expecting/hoping for more.

Finally, a pitch for an often-forgotten show about academia: The Education of Max Bickford (2001-02), about the reluctant (old, white, male) chair of the History/American Studies department at a women's college. It aired during my first year in teaching and while my wife, who attended a women's college, was in grad school. It is a network show, so it is generally unambitious and has similar plot holes to The Chair. But it is worth a rewatch, if you can find it streaming.

Evidence that Jews do not run Hollywood

I have written that The Goldbergs (a show we love and watch regularly) struggles with how explicitly Jewish it wants to be. This week's Christmas-themed episode might have been its most Jewish. It showed gifts wrapped with blue-and-white paper with Stars of David; visible Happy Chanukah bunting; and a Menorah with candles. Best of all, it showed Beverly lighting first-night candles.

Then she blew them out.

"Leavenworth" on Starz

This Sunday, Starz airs the first episode of the 5-hour documentary series Leavenworth, directed by Steven Soderburgh and telling the story of Lt. Clint Lorance. Episodes 3 and 5 feature FIU and my colleague Eric Carpenter (a former JAG officer); Eric is interviewed and the program includes footage of students mooting the case in his Military Justice class.

Reacting to "Chernobyl"

I finished watching HBO's wonderful mini-series Chernobyl. It is interesting to see the distinct messages drawn from opposing political sides--the same show being watched in different universes.

For many conservatives, the message is "Soviet Union/Communism/Socialism is bad." The insight of the series is how bad things are when the state owns things like nuclear power plants, as well as the scientific institutes that investigate accidents. The current relevance is how much better we are because there is no Soviet Union and how bad it would be if one of those socialists became President.

For many liberals (and for the producers of the series), the message is "the cost of lies," the line with which the lead scientists begins and ends the series. The insight is the lies (or false denials) surrounding the fact and severity of the accident and the lies surrounding the cause of the accident. The current relevance is that we have similar problems of governmental lies and secrecy and willingness of people to lie to protect the government or its leaders. People will lie on behalf of many leaders, not only a communist state.

For what it is worth, showrunner Craig Mazin says it is both: "It’s anti­–Soviet government, and it is anti-lie, and it is pro–human being."

Game of Papers/Game of Thrones

This McSweeney's piece suggested quotations from The Princess Bride that double as comments on paper (I have used "I do not think it means what you think it means"). I wondered: What quotations from Game of Thrones might serve a similar function? The obvious one is "You know nothing, Jon Snow."

What else can serve this function?

Don't be a lawyer

We are big fans of Crazy Ex Girlfriend, especially the music. Tonight, the show takes on law school and practicing law. Enjoy.

Update: Having seen the episode, the main plot development is the lead character deciding she does not want to be a lawyer anymore (although she is shown as being good at it). I must admit to expecting her to decide midway through the episode that she instead would become a law professor.

Most lawyery "Better Call Saul"

This week's Better Call Saul, titled "Wiedersehen" (the penultimate episode of Season 4), may have been the most lawyery episode. Consider:

• Shout out to Justice Stewart. Jimmy and Kim discuss when the situation will again be right to pull the scams that make them both feel alive. Kim insists they will know the right situation when they see it.

• Appearing before the committee considering whether to reinstate him, Jimmy talks about attending the University of American Somoa, although he would have preferred to attend Georgetown or Northwestern (my alma mater).

• At the same hearing, Jimmy is asked  whether he has kept abreast of changes in the law. He talks at length about Crawford v. Washington and the Confrontation Clause.

The Deuce '77

I just watched the season two premiere of The Deuce, which time-jumps to 1977 and depicts the late-'70s New York City of Ed Koch that I remember as a I kid. After the jump, one thought and one question:

Question: Does anyone know if actor Luke Kirby is Jewish? I have seen him in three shows--Rectify, in which he played Jewish lawyer Jon Stern; Fabulous Mrs. Maisel, in which he plays Lenny Bruce; and now the new season of The Deuce, in which he plays a Koch aide named Gene Goodman. Just curious.

Thought: One character on the show is a porn producer named Harvey Wasserman. Early in the episode, during a disagreement between Harvey and Maggie Gyllenhall's Eileen about a movie clip, Eileen says "Fuck you, Wasserman." While perhaps many a student thinks it, I don't hear that said on TV very often.

Big Little Lies--Crim Law Question

My wife and I just finished Season One of Big Little Lies. We enjoyed the show. But we were not fans of how it ended, specifically how the police resolved the investigation and why, why the women told the story they did, and what criminal law has to say about it.

SPOILERS after the jump. Substantive crim law people, please help us out.

Assuming what was shown on the screen is accurate, here is what happened:

Perry, Celeste's abusive husband, begins attacking and beating her on the patio, in front of a stairwell that has caution tape across it. Celeste's three friends try to pull him off and he beats them off. Celeste is on the ground and Perry stands over her and kicks her multiple times. The other three women are helpless to stop the attack, which appears that it could continue and result in serious injuries. A fifth woman, Bonnie, runs from the far end of the patio towards Perry and shoves him with two hands towards the open stairwell; he breaks through the tape and falls down the steps, dying in the fall.

The woman all agree to tell the story that as Perry was kicking her, he fell backwards through the tape and down the stairs. One detective dismisses that as bullshit, because the women's stories and language line up too perfectly. Her partner asks why they would lie. He suggests that this clearly was self-defense, that the pusher (the police do not know who that was, although the partner assumes it was Celeste) would be guilty of at most involuntary manslaughter, and would get at most a year of community service, likely cut in half. (Put aside that community service does not work that way).

Here are my questions:

• Is that right under the law? What we see on-screen looks like defense-of-others and was a two-hand shove to stop a large man from severely beating a smaller and prone woman. It was a tame physical act, calculated to try to stop the ongoing assault. Does his falling down the stairs, in a defense-of-other situation, turn that into a crime? Would any prosecutor charge that, in these circumstances?

• If it is a crime, then having the police be confused over the women lying is stupid. They are lying because the truth would result in someone being convicted of a violent felony for coming to an abused woman's aide. Even if her sentence is relatively light, it is still a conviction for a violent crime and still a felony with all the collateral consequences that follow. Given the choice between the truth and a conviction or a lie that cannot be proven otherwise, of course they will choose the lie.

• Perhaps the story is trying to set-up the impossible situation for abused women, that attempting to fight back costs more. And perhaps that will be the theme of Season Two. But I did not see the groundwork laid for that.

Comments on the attorney disciplinary hearing on Better Call Saul

Better Call Saul moved to Jimmy's bar disciplinary proceeding this week. Spoilers and discussion after the jump.

It played as a standard courtroom drama (which I generally do not like)--lots of testimony and argument masquerading as questions from the attorney, lots of long speeches and monologues by witnesses discussing irrelevant and inadmissible stuff, an unsworn potential witness in the gallery offering "testimony." In the end, Jimmy induced Chuck into showing that his allergy to electricity is psychosomatic (in part by planting a cell-phone batter in his suit jacket, courtesy of light-fingered Huell, who becomes Saul Goodman's fixer) and that Chuck's efforts against Jimmy are part of a lifetime of fraternal resentment and a desire to end Jimmy's legal career. The episode ended with Chuck sitting on the witness stand, having come undone; we must wait until next week to see what happens to either Jimmy or Chuck at the hands of the Bar.

The charges read at the beginning of the hearing were (they got the Code provisions right): 1) § 16-102(D): Engaging in conduct the lawyer knows to be criminal (breaking into the house); 2) § 16-804(b): Committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer (assaulting another lawyer, Chuck, in his home); 3) § 16-304(a): Unlawfully altering, destroying, or concealing a document or other material having potential evidentiary value (the tape recording as evidence in an ongoing legal case).

So several questions and comments.

First, two of the provisions do not seem to apply to this situation. Section 16-304 is titled "Fairness to Opposing Party and Counsel" and sits within a series of provisions under the heading "Advocate." The whole portion of the code speaks to attorneys' obligations and prohibitions when acting as lawyers in any judicial or quasi-judicial proceeding before a tribunal. Section 16-304 is about an attorney's discovery, pre-trial, and trial obligations to the other side in a proceeding; sub-section (a) prohibits an attorney from destroying, altering, or obstructing the opposing party's access to evidence--implicitly, evidenceis in the lawyer's (or her client's) control and that the other side may want or need in the course of formal proceedings.  Jimmy and Chuck were not opposing counsel in any ongoing proceeding before a tribunal and Jimmy did not destroy evidence in his control to keep Chuck, as opposing counsel, from having access to it. And that language does not seem to contemplate one lawyer breaking into another's house to destroy evidence the other side has in its control, especially outside formal adversary and representative contexts.

Similarly, § 16-102 is about the  the attorney-client relationship and the scope of representation, prohibiting criminal conduct within that relationship (as well as counseling or assisting a client in criminal conduct). Again, not this--whatever criminal conduct Jimmy engaged in had nothing to do with his representation of anyone.

That leaves § 16-804, which defines prohibited misconduct in a section on maintaining the integrity of the profession. This is what should be in play here--regulations that govern someone not when acting as a lawyer or in his representative relationship, but as a person with a law degree whose extra-curricular activities reflect badly on the profession.  And this section is broad enough to capture Jimmy's three criminal acts--breaking and entering, assault, and destruction of property. It is only for dramatic purposes (more below) that the show had to go beyond this provision. (Not so different than in Season One, when a legal-research request included pulling every case on every provisions of RICO).

Second, I do not understand why the tape was admissible and played during the hearing. Jimmy was not charged with tampering with the bank documents, which is what he confessed to on the tape. And the whole premise of Chuck's elaborate plan to get Jimmy to break into the house and destroy the tape, rather than using the tape as evidence of misconduct in altering the documents, was that the tape was not admissible.

So why did the tape come in? The theory, it appears, was that it was necessary for the Bar to prove that the tape was evidence of misconduct to prove that Jimmy destroyed or intended to destroy something with potential evidentiary value. If the tape did not contain a confession of wrongdoing, it did not have potential evidentiary value, thus destroying it would not violate § 16-302(a). And that explains why Kim made what amounted to a 403 objection, arguing that the tape's probative value was substantially outweighed by the danger of unfair prejudice--the tape's relevance to show that the thing destroyed had evidentiary value is outweighed by the risk that the committee would use it to conclude that Jimmy committed the uncharged, but arguably more serious, act of altering legal documents.

But (putting aside whether § 16-302(a) reaches this sort of destruction of someone else's evidence outside of relations with opposing counsel) if the tape is not admissible in any proceeding, is it still "potential evidence" that can be destroyed? Can something be "potential" evidence if it is obviously not admissible in any formal proceeding? Is it enough that the respondent "reasonably believes" what he destroyed was potential evidence and that this is why he destroyed it? Does it matter that there is no ongoing proceeding in which the tape could have been submitted (even if it would have been admissible when that proceeding began)?

Third, Chuck's mental state should not matter. It does not change that Jimmy did everything the Bar accused him of doing--he did break into the house, he did destroy personal property (potential evidentiary value or otherwise), and he did assault Chuck. I am not sure why Chuck's mental illness, Chuck's resentment of Jimmy, or the overall state of their relationship matters. If those are Bar-punishable offenses (whether by disbarment or some lesser sanction), they remain so.

The theory must be something like this: If Chuck is mentally ill and/or convinced of Jimmy's wrongdoing, Jimmy was (out of love) telling his ill brother what he wanted to hear in a moment of crisis, rather than confessing to actual misconduct. Chuck was so distraught in his delusion that Jimmy altered the documents that Jimmy admitted doing so only to help Chuck feel better. And if not a confession to actual misconduct but a white lie to ease his brother's troubled mind, the tape is not evidence. But, again, why does it matter that Chuck is mentally ill?  Jimmy could make the "telling him what he wanted to hear" argument even if Chuck was healthy but having a crisis of confidence in his legal abilities or even if his physical condition were real--Jimmy might falsely confess to ease his brother's discomfort, regardless of the cause of that discomfort.

This point seems a victim of plot. To create a narrative of the brothers working elaborate cons on one another, the legal theory in the story also had to be convoluted.

Fourth, Jimmy should still be in trouble. He did break-and-enter and he did commit assault and those do reflect adversely on his fitness. And that does not change because Chuck is mentally ill or vengeful. Both actions could warrant bar discipline, although perhaps not disbarment. Of course, I am not convinced that destroying potential evidence (even if it is admissible) would warrant disbarment, the ultimate sanction that seems reserved for the most extreme and repeated conduct.

Better Call Saul does professional responsibility

If Season 1 of Better Call Saul brought us impact civil litigation, and Season 2 brought us competition for clients, Season 3 is poised to bring us the attorney-disciplinary process. As things stand entering Episode 3-04, Chuck baited Jimmy into first confessing to tampering with some documents, then to committing a series of crimes, including felony breaking-and-entering. And the plea deal the prosecution offers Jimmy (at Chuck's manipulative suggestion) is pretrial diversion in exchange for a confession, which will be presented to the State Ba. The premise is that confession of a felony would mean disbarment. So we seem to be gearing up to see Jimmy litigating an attorney-disciplinary proceeding in the coming weeks.

Is confession to a felony per se, unaccompanied by jail time, grounds for disbarment (as opposed to suspension or reprimand)? And if the goal is to get Jimmy disbarred, wouldn't tampering with documents in a legal proceeding be stronger grounds than criminal charges resulting from a dispute between two brothers?

I look forward to seeing it play out, although we know the outcome--Jimmy will continue practicing law, just not as Jimmy McGill.

Bachelawyers

The Ringer looks at the many, many lawyers who have gone on the Bachelor/Bachelorette, including the upcoming bachelorette.

Designated Survivor, S1E2

I think I am out.

In part, as one reviewer said, it is a network drama--everything is on the nose and explained, in a way that comes across as stilted and unrealistic. For example, when the President reveals that he had lied about undercover agents to get the governor of Michigan to order the state police to stop rounding up Muslims, his aide announced "he was bluffing." Thanks for that. In part, it takes a craven and unrealistic view of the media and the public and how they are likely to react to, and report on, this story. A lot has changed in our political and media culture since 2001, to say nothing of earlier. But I would expect that, at least during the first 48 hours, someone in Kirkman's position would get a great benefit of the doubt from the press and the public, much as Lyndon Johnson did.

Still, the show followed some interesting threads this week. Unfortunately, I am just not sure the interesting threads overcome the other, less enjoyable pieces of the show.

The relevant story line (ignoring the whodunnit investigation and the drug-dealing teenage son, neither of which interests me) is that the Governor of Michigan ordered State Police to roundup Muslims in Dearborn, resulting in many arrests and the beating death of one teenager by a police officer (captured, of course, on video). The Governor explicitly rejects Kirkman's presidential authority, insisting Kirkman is not "his" President and that the Governor is the highest authority in the state.

This presents an interesting continuity-of-government problem--what if the governor of a State, an independent sovereign, declines to recognize the authority of the acting president. I believe the non-craven view of politics would prevail, at least in the early hours.

But the show goes off the rails when Kirkman looks for a solution. He speaks with two people from the Attorney General's office (or maybe two possible candidates for AG), who give absolute gobbledygook for advice. Thing 1 suggests the President can "invoke the Supremacy Clause" (a phrase which is meaningless) and issue an Executive Order requiring the governor to force his police to stand down (something for which there is no legal authority). Thing 2 says an executive order can be perceived as "hostile," instead recommending a presidential proclamation; when Thing 1 responds that would be a weak, symbolic, empty gesture (it is), Thing 2 reminds that President Bush used proclamations to secure disaster areas after Hurricane Katrina--which might have been effective because FEMA was in charge of the area, but has nothing to do with the current problem. Naturally, the lawyers both come across as useless schmucks. Later, the President's wife (also a lawyer) reminds her husband of Kennedy calling out the National Guard against George Wallace, but Kirkman rejects that as a "nuclear option."

Missing in all of this, of course, is that the President cannot simply order--via national guard, proclamation, executive order, or video phone call--states and state officials to do or not do anything. Even if the state is acting unconstitutionally, the federal government cannot simply tell the state what to do (or it can, but cannot expect the order alone to have any legal effect). The correct answer to the problem is for the US to sue Michigan for this massive constitutional violation, while perhaps bringing a § 242 prosecution against the officer who beat the kid to death. Or the US could support the private lawsuits that the ACLU (which is described as denouncing the round-ups, but nothing more) would be sprinting to the courthouse to file. And when the court orders the state to stop rounding up every Muslim in the city, either a) the governor complies with the order (because they usually do) or b) Kirkman calls in the National Guard (the show, like everyone else, forgets that Kennedy could call in the National Guard only after a federal court had enjoined Wallace from interfering with integration of the university--Kennedy did not simply annouce that Wallace had to stop interfering and then send in troops).

And even if a lawsuit takes time, the threat of a lawsuit and its enforcement might have been enough to get the governor to stand down. In fact, it might have been a good way to show Kirkman's power: "You may not regard me as 'your president,' but vested in me is the executive Power of the United States and I can still bring it down on you and your State if you do not fall in line." That would have been a better show of legal force; instead, the show went for Kirkman's cleverness (he lied that the sweep had caught up undercover federal agents, so the governor was obstructing justice) in an unrealistic maneuver.

Of course, a lawsuit would be more "hostile" than an executive order (especially because it actually would be valid in law, so it would have, you know, actual force). But here is a different narrative problem. During a public appearance at the bomb site, the public and press begin shouting at Kirkman about the civil rights violations in Michigan (interrupting his Bush-esque speech on a bullhorn), accusing him of not being concerned about such violations and of allowing Americans to be beaten. But if that is the public mood (that the Muslims being arrested are "Americans" deserving of protection), then the lawsuit and enforcement of the resulting injunction would be quite popular, or at least not seen as hostile. In which case, this ceases to be a "nuclear" or "hostile" option of which Kirkman should be afraid. The show wants to have it both ways narratively--Kirkman is under attack for not doing anything about civil rights violations, but he would be pilloried if he did something because the nation is again afraid of, and hostile to, Muslims.

Finally, we get talk of reconstituting the government. Kirkman insists on putting together a cabinet and sends his HUD aide and the WH Deputy Chief of Staff (the two clearly have had sex in the past) to come up with names. There is no mention of states either appointing Senators or calling for House elections. This raises one interesting, although unexplored, point: With no Senate (and again, no mention of appointments), no one can be confirmed as a cabinet officer; they only could be acting secretaries. Given that, would an acting president seek out new appointees to these posts? Or would he just elevate the # 2 in each department to acting secretary, to maintain some continuity within the department?

As I said, I think I am out. Because although the show has teased some interesting threads, it is not playing them in a way I find interesting or enjoyable.

Nonconsensual Pornography and the "Gay Bachelor"

Logo TV, an LGBTQ-themed television network, is running a sort-of reality show called "Finding Prince Charming." I hear it's absolutely terrible. It looks a lot like ABC's "The Bachelor," except Logo's version is about gay men. Its star is a statuesque man named Robert Sepulveda Jr., a model, interior designer, and, apparently, a former escort. Because Mr. Sepulveda is on television trying to become famous, a celebrity gossip website thought it was "newsworthy" to publish explicit photos of him from his escort days without his consent. The photos have now been "unpublished."  As far as we can tell, Mr. Sepulveda used those photos during his days as an escort. He didn't publish them online for everyone to see. Posting graphic or explicit photos of another without his or her consent is called "nonconsensual pornography" (NCP), more commonly known as "revenge porn." And it is a crime in 35 jurisdictions and counting.

Most NCP victims are women. But gay men are frequent victims, as well. Lokies Khan, a gay Singaporean man, had a sex tape posted online without consent. Speaking on the YouTube channel, Dear Straight People, Mr. Khan said he felt "violated," "scared," and undermined by the incident: “Things that I post on Instagram are things that are within my control, are things I want people to see, [that] I’m comfortable with people to look at. But these gifs of me on Tumblr are not within my control. I did not give consent. I did not know it was there.”

In my own research, I have spoken to more than 20 gay male victims of NCP. It usually happens in one of two contexts:

1. As with many cases of NCP, generally, ex-boyfriends sometimes post nude or graphic images of their former partners on Craigslist, pornography websites, or use them to impersonate victims on social networking sites.
2. Some gay male NCP victims participate in gay social networking apps. Those apps require their users to post a profile photograph, but social norms on the platforms often make sharing more intimate photos a de facto requirement of participation.

One person I spoke to was a victim of NCP at the hands of a photographer who enticed the victim with promises of free professional headshots for casting calls. Many victims felt "vulnerable"; others felt angry about a person stealing their photographs. Almost all of them found different ways to express how NCP is a devastating erosion of trust.

Victims sent intimate photos to their former partners when they were apart, as kind of a modern day love letter. And many victims were indignant when their friends, acquaintances, or online commenters blamed them for taking and sending the not-suitable-for-work photos in the first place. On gay social networking apps, in particular, a background trust exists. As one man said to me, "We're all gay on here. We're all part of the same tribe, looking for community and companionship in a tough world. You are expected to share photos, with your face and your body. If you don't, people don't talk to you. To have that thrown back in your face is really devastating."

NCP can destroy its victims, as Danielle Citron and Mary Anne Franks have described at multiple points in their work. The fact that photos may be "unpublished" does not make the situation any better. The original publisher may have changed his mind, but the photos, once available online, could have been downloaded, uploaded, and reposted thousands of time. Nor is it a publisher's First Amendment right to publish anything he wants about others. Even celebrities enjoy a right to privacy, which, in fact, fosters more, better, and diverse speech.

Despite having his private photos published online, Robert Sepulveda may be doing fine; he hasn't, as far as we know, experienced the kind of professional, personal, physical, and emotional abuse faced by many NCP victims. But he has been the subject of repeated ridicule online for his past as an escort. The attacks have been a combination of different types of shaming (those who both look down on male escorts and those who think he is a poor role model for the LGBTQ community). Whatever we think about escorting or "sex work" or his absolutely excruciating show, no one deserves to have his or her privacy invaded by transforming them into the subject of the prurient interests of others without consent.

Designated Survivor

I am intrigued by the new ABC show Designated Survivor (long trailer after the jump, premiere on Wednesday, 9/21), which shows the HUD Secretary (played by Keifer Sutherland, wearing a Cornell hoodie and glasses to show that he is an egghead and no Jack Bauer) becoming acting president (not president) when the Capitol is destroyed by a terrorist attack during the State of the Union address.

I am curious where the show goes. It would be interesting to see the process of reconstituting a government, especially Congress. It also would be interesting to see the process of the executive trying to do anything without a legislature (as opposed to a legislature that just will not do its job). I am not particularly interested watching a revenge fantasy a la 24 (this gut-reaction preview suggests it feints in the latter direction at times). Nor The West Wing without political legitimacy, a basic political drama.

Instead, I hope the show recognizes, and plays, the uniqueness of the premise. This is more than a political drama or even a political drama about an individual thrust into circumstances for which he may not be prepared and having to grow into the job (think Harry Truman). This is that, but in a last-gasp, no-alternative situation, in which our basic governmental structure is gone or has to be recreated on the fly. I hope the show embraces that.

Around the 1:35 mark in the trailer, Sutherland is talking with a speechwriter played by Kal Penn. As the scene is shown here, Sutherland asks whether Penn thinks he should step down, Penn says "I do," and Sutherland responds that he may be right, but for the moment he is all they have. It is a good line, designed to show Sutherland's steely resolve to rise to the occasion. But the conversation undermines the show's premise or the intelligence of its characters. That is a conversation you have when there is a choice ("Sorry, A, but B would be a better president).  Who does Penn want Sutherland to step down in favor of? Or who does Penn believe Sutherland could step down in favor of? He is literally the only person on the planet legally authorized to wield the executive Power of the United States. Anyone else acting as president would do so contrary to law (put aside whether we would accept and retroactively ratify such actions). Sutherland's "For now, I'm all you've got" drives the point home. But the head WH speechwriter, someone who presumably knows something about how the government works, already should know that.

Plus, the situation allows for depictions of genuine political intrigue that at least merit discussion, rather than ginned-up stories of Machiavellian chiefs of staff. Suppose one member of the House (not the Speaker) survived the attack, declared himself elected as Speaker by a majority vote of one member, and tried to argue that he had prior authority to act as president (raising some quorum concerns that have never been resolved). Or suppose the duly elected Speaker of a reconstituted House insists he has prior entitlement. Section 19(d)(2) (providing, in a convoluted fashion, that a cabinet member acting as president cannot be supplanted by a legislative officer acting as president) seems to resolve that, but this is all new ground and arguments always can be made. The show also could depict the holes commentators and advocates (including me) have identified in the succession statute, especially post-9/11: The absence of a mechanism to quickly reconstitute the House; the need for a special presidential election when an unknown, inexperienced, lower-level cabinet secretary (who may have been fired that morning) takes the executive power. But I doubt this creates enough drama compared with Jack-Bauer-in-glasses-and-a-Cornell-hoodie.

Finally, I never looked into the designated survivor practices when I was writing about this, so I was not aware of a paradox, in terms of political legitimacy. The highest cabinet officer ever to be the designated survivor has been the Attorney General on three occasions (John Ashcroft, Alberto Gonzales, and Eric Holder), which is fourth on the cabinet list. Secretaries of State, Treasury, and Defense are never designated, even though they are the highest-profile and most likely to have political, and even presidential, experience (of the last four Secretaries of State, two had run for president and one was a top military official who everyone had wanted to run for president) that would be important in the event of a catastrophe.

Anyway, I look  forward to beginning to watch this. I hope they do something good with it.

The Night of Conclusion

I was a guest on New York Magazine's Vulture TV Podcast (begins at 30:00 mark) discussing the finale of The Night Of. Some additional comments (with spoilers) after the jump.

1) I like the ambiguity of the ending, in which we do not really know who killed Andrea. Naz is not acquitted--it is an evenly split jury--but we do not see the end result of the investigation of Ray Halle, the suspect the show throws at us, for the first time, about midway through the finale. The truth is we never know what happened in many cases; the system makes its best guess using procedures designed to produce accurate results (albeit in an efficient and fair way).

2) I do not think the decision to continue the prosecution of Naz, even after learning about Halle, was wrong. And it certainly was not unethical. There was more evidence against Naz. The evidence against Halle was that he had motive, opportunity, and a connection to the victim--the same evidence as against the step-father and Duane Reade, although of a different nature and perhaps somewhat strong. The unforgivable sin was the prosecutor not disclosing that evidence, an obvious Brady violation. It is interesting that the show gives the prosecutor a heroic ending of sorts--she tanks the closing argument while having second thoughts, she declines to reprosecute, and she enlists Box to help her make a case against Halle. But her failure to disclose reflects a cardinal sin for a prosecutor, the most common type of prosecutorial misconduct and the source of many wrongful convictions. I wish the show had not downplayed that. And, as I said in the podcast discussion, she picked the worst of all possible ways to express her doubts--she did not dismiss the charges (a precipitous move, since I imagine jeopardy had attached, so if Halle turned out to be a dead-end, she was stuck) or disclose and let the jury hear the new evidence (and perhaps acquit). Her choice actually left Naz permanently in limbo.

3) Rule 404 does not exist in TV Land; there was more character and other-acts evidence flying around this week. Interestingly, however, some of it would have been admissible, although not for the reasons the show depicts. Some good exam hypos.

4) Trevor should have been able to plead the Fifth when asked about lying about being with Duane Reade. Wasn't he confessing to lying to police, which is a crime?

5) I did not think the decision to have Naz testify was wrong. It was poorly executed. He was unprepared for cross. And most of what came out on cross should have been presented on direct. The show presented an interesting divide over having the defendant testify. I imagine defense lawyers will say that the popular view is that an innocent defendant would take the stand and explain his side of the story and that the failure to testify is suspicious, despite the judge's charge. As presented through John, the show's theory is that, without testifying, the jury understands the defendant as wearing the "cloak of the presumption of innocence," but that if he testifies, his testimony must be strong enough to "prove his innocence." Meaning, presumably, that a defendant should never testify. In any event, his testimony is a disaster, which leads to . . .

6) I again cannot express strongly enough how turned off I was by the portrayal of women lawyers. The show destroyed Chandra's character--as always, in the service of enabling the male lawyer to emerge as the hero--in the most ludicrous ways. Several reviews have suggested the show reverse-engineered it--it needed John to be the hero, then just found the most ridiculous way to get there. Worse still, I am not sure its machinations were legally accurate. While unethical and grounds for bar discipline, I am not sure that kissing a client is grounds either for a mistrial, removal of the attorney, or forcing the attorney to yield her role as first chair. And all without asking the defendant his preferences, which should control. There is a case down here in which a defense attorney was accused of having full-on sex with her client in the interview room; she was temporarily barred from the jail, but she represented the client at trial.

There is a lot of talk about the awful portrayal of women on TV (think of some of the criticisms of Season One of True Detective). This show should be included in the discussion. Which is unfortunate, because it undermines an otherwise-good story.

Veep, S5E5

The show takes place during Thanksgiving weekend, in an episode that has a lot of House-election stuff in the air.

Selina begins making phone calls to whip votes for the coming House election. But the show approaches that election in a way that is, at least on the surface, sloppy--the correct understanding may be in the background, but the details to come out in the way characters discuss the mater.

Details (and spoilers) after the jump.

First, no one has yet acknowledged that we do not know for sure that there is an Electoral College tie. The electors have not yet voted (that happens on the first Monday after the second Wednesday in December, so about three weeks from the current action), not every state has a faithless-elector law (and for the states that do, their constitutionality is not settled), and in the show's universe of less-rigid partisanship, an elector defecting to the other party (to say nothing of the hypothesized rogue Tom James vote) is not outside the realm. We will not know that the vote is tied until January 6, when the House meets to count the votes. There is a presumptive tie, given how the College now works, but it remains just that.

Second, it seems odd that Selina seems to be whipping current members of the House, since it is the new House, beginning January 5, that will count the electoral votes and, if there is no majority, select the President. The show could at least mine some scenes from Selina lobbying some new House-members-elect who have not yet taken office.

Third, she is making calls as if individual votes matter, rather than the partisan make-up of the state delegation. Thus, when Rep. Harry Sherman of New Hampshire (an 89-year-old man from the other party) dies, Selina's reaction is that this is one less vote for O'Brien, rather than talking in terms of how it affects the New Hampshire delegation as a whole. New Hampshire has two representatives. If the other representative is from Sherman's party, the state still goes for O'Brien; if she is from the other party, it turns a split delegation into a vote for Selina. That should be the discussion.

That last point leads to the other narrative development over replacing Sherman The state announces it will hold a special election "before Christmas." Sherman's  widow (perhaps also-octogenarian, although it would not surprise me if the show trotted out a much-younger woman and played that for laughs) is running to replace him and Selina's party recruits Jonah to oppose her.* But the show is not clear about what vacancy is being filled. Is it the current term, that ends on January 4? Would a state bother to hold an election so someone can serve for 15 days? Or is it for the next term (the one for which Sherman was re-elected) that begins on January 5? But that seat is not yet vacant, since the term of Congress has not begun. Would a state hold a special election before the beginning of the new Congress to fill a vacancy that will occur when the new Congress is seated, but not before and that thus does not exist? It does not appear to be constitutionally obligated to do so. Perhaps it would do so here, given the extraordinary and historic circumstances. In any event, the show is being non-specific on this point.

[*] The decision to have Jonah as the candidate is discussed inconsistently. At times, he is spoken of as cannon fodder, thrown in to lose to the grieving widow. At other times, it is discussed as Jonah likely winning the election (because his uncle is king-maker in the state), but only as a short-time placeholder until his more-favored cousin returns from a tour of duty in the Middle East.

Finally, the show throws out a little Twenty-fifth Amendment action. Selina wants to disappear for the weekend to have minor cosmetic surgery to remove the bags from under her eyes, which leaves both eyes with rings of blood for a few days. Naturally, she is needed to speak to the public, first to calm concerns over a salmonella outbreak and then to address Rep. Sherman's death. She asks both Tom James** and current VP Doyle to take the lead. Doyle agrees once, then balks a second time until he is told why Selina cannot do it. When Mike lies that she just had some minor oral surgery that renders her unable to speak in public, Doyle demands to know why the amendment was not invoked for the President's incapacity or why, if not incapacitated, Selina does not do this herself; Mike's response--"she's not not incapacitated"--is classic Veep.

[**] James is shown working some scheme through his public statements, in which he appears to be shilling for companies represented by a lobbying firm. Is he setting up that one faithless elector to get him into the House vote? Dan, who has been assigned as James' bag man, catches on, but no one in Selina's camp believes him.

The Supreme Court, On Demand

It has become almost a yearly rite: Congress introduces a bipartisan bill to require television cameras in the Supreme Court. The Justices express their concerns about the proposal. High-minded words are exchanged about the dignity of the courts versus the public’s right to know. Eventually the bill dies in committee.

The traditional arguments for cameras, such as public interest in following high-profile cases, or general appeals to transparency, are unlikely to resonate with the Court any more this year than in years past. But there is another case for Supreme Court cameras, and it stems from the federal judiciary’s own highly successful cameras program in the district courts.

In 2011, the Judicial Conference of the United States authorized a pilot program for periodically recording civil proceedings in fourteen federal district courts.  The proceedings are then uploaded to the U.S. Courts website, where they are indexed and accompanied by additional information on the case. The entire process is conducted by the courts themselves, without media cameras or external video processing. The result has been a video library of hundreds of proceedings, ranging from pretrial conferences to summary judgment hearings to multi-day trials. The videos have been viewed hundreds of thousands of times.

The success of the district court pilot, which I explore in  much more detail here, offers an excellent blueprint for a parallel Supreme Court program.

First, as the district court pilot has shown, both practicing lawyers and ordinary citizens stand to learn a great deal from actually watching Supreme Court proceedings. Watching the Court in action educates those in the legal profession about procedures before the Court, the issues of particular interest to the Justices, and ways in which an attorney might capture the interest and attention of the Court. For the public, watching the Court in action is all the more important: rather than allowing journalists and comedians define the Court’s work after the fact, the public can go straight to the source. Many studies suggest that watching an event on video (whether delayed or through live streaming) carries many of the cognitive benefits accrued from watching a live event. Whether the public would take advantage of this educational opportunity in any serious way is an open question, but at least that opportunity would exist.

Second, a recording (and/or live streaming) program would bolster the Court’s public legitimacy, by openly demonstrating the court’s commitment to transparency and accountability. Public support for the Supreme Court has been hovering at or below 50% for much of the past decade. At the same time, the public is increasingly seeking information through screen time. Watching the Court in action can demystify the judicial process and reduce public reliance in the messaging of politicians, reporters, and editorial writers. Supreme Court Justices, like all federal judges, are public servants. If they are proud of their work, they should welcome public viewing.

Finally, it suggests how the courts can achieve these educational and transparency goals without relying on the news media—the primary public concern of the Justices. Just as cameras have been placed in unobtrusive locations within district courtrooms, and the final recordings made available on the courts’ website, so too can recordings of Supreme Court proceedings be made available on its website, accompanied by rich contextual matter. The Supreme Court can also easily provide live streaming of oral arguments and case announcements without threatening the dignity or solemnity of the proceedings. Indeed, it may avoid the alternative, John Oliver-style, treatments. If the Court really wants to have some control over its own message, it cannot close its eyes and ears to the realities of the twenty-first century.

At least, we can hope.

N.B. -- The district court program has been an excellent resource for my teaching, and I recommend it highly for others whose students cannot as a practical matter visit the courthouse to observe proceedings.

Sunday Sci-Fi Pay Equity Blog

The X-Files returns tonight. The world seems a wee bit better when Mulder and Scully are flirting while chasing aliens and discovering inbred Pennsylvanians tied under beds.

And the good news is that the show's stars, David Duchovny and Gillian Anderson, will be receiving equal pay for the revival. According to this story, as well as a gaggle of others, Anderson was initially offered half of Duchovny's salary. Which is, you know, silly, especially since she had to fight for equal pay with her co-star the first time around.  Apparently, when the show first started, Anderson was instructed to walk behind, rather than alongside, Duchovny, so she would seem more like a sidekick than a partner.

I, of course, blame the government. It's a conspiracy. Aliens are involved. The truth is out there.

The Waiting

Like every third person on the planet, I like Serial. Regardless of what people are saying about the podcast's second season, the show is very good. These are master storytellers at the height of their game. Now that the show is leaking out slower than it used to, I've had more time to think about it. And that's one of the things I like best about it.

Waiting often sucks. My friend is late to pick me up. Sucks. The light has been green for twenty seconds and no one is driving their effing car. Sucks. The professor still hasn't posted grades. Sucks. But the anticipation is wonderful. The waiting is one of the things that makes it great.

Don't get me wrong. I binge with the best of them. I binge-watch shows that beg for a cooling off period, like Sundance Channel's Rectify. It's a beautiful show, to be sure, but the main character's whole Boo Radley thing is straining, especially when you power into the third episode straight. And yet I chug it down like it has the antidote. Perhaps the problem is my lack of self-control, but that's a different post for a different day.

 There's a lot of talk out there about the changing nature of entertainment norms and structures. Content is increasingly being dumped at once, and we watchers/listeners/readers have more access to good content than ever before. For the most part, I think this is great. I just worry that we lose the benefit of anticipation. My son is 12. Basically all he knows is streaming content (and he's never looked up something in a phone book, which is messed up.) I like to have stories stick with me. I like the opportunity to speculate. I like being able to set down a show for a bit. And Netflix knows this about me, which is why it just fires up the next episode. Don't let him stop. Keep him watching. Eventually he'll give in and watch Marco Polo or Hemlock Grove.

It's only a matter of time before the major networks abandon the current method of scheduling programming. And it's a shame. A show like Lost shouldn't be binge-watched. You have to dedicate a certain amount of hours to wondering where that frigging polar bear came from. The struggle is real, and we're losing it, and that's unfortunate.

Sunday Soderbergh Blog

Steven Soderbergh is a productive guy. Like really productive. In the last few days, I've stumbled upon some interesting pieces about the man, the myth, the auteur . Those familiar with my writing already know that Soderbergh has been a huge influence on me and my thinking about New York hospital culture in the early years of the 20th century. So please enjoy:

The first is his own list of stuff he watched, read, and listened to in 2015. Yes, it's weird he keeps a list. And weirder that he publicizes it. But I'm really struck by the range of his interests. Dude loves him some news magazine shows. Which makes sense, because Lester Holt is awesome.

The second is a Vulture piece by Matt Zoller Seitz about how The Knick, Soderbergh's show on Cinemax, is made. It's a crazy schedule. I found it riveting--more so than the show it covers.

I'm glad no one has decided to write one of these stories about me ("He writes slowly and infrequently, breaking for podcasts, donuts, and naps.")

Happy Sunday. 

Kids Today (or "I don't know about you, but I'm feeling 22")

Friends who are not law professors are under the mistaken impression that since I spend so much time with law students, I must feel young and hip. To the contrary, I find that each passing year highlights in clearer relief the true generation gap between the fresh new 1Ls and myself.  In case you too are wondering why it is sometimes hard to connect culturally to today’s “Millennial” students, here’s a little bit of info about the personal cultural context of a typical 1L, starting law school this month.  For sake of this fact-based hypothetical, we’ll call her the “reasonable law student” (RLS) and assume that she is 22 years old.

• World/National Events Context:
• Childhood: RLS was born in 1993, the year that Czechoslovakia broke apart, Ruth Bader Ginsburg was appointed to the Supreme Court, and Bill Clinton instituted a “don’t ask, don’t tell” policy for homosexuality in the military. When RLS was 2, her parents watched the OJ Simpson trial and the Oklahoma City bombing on TV.  RLS started kindergarten in 1998, just as the Clinton-Lewinsky scandal was winding down (and 4-year-old RLS had probably been kept in the dark about the finer points of Clinton’s “relations” with “that woman”).  RLS has no memory of any Y2K worries, since these were all proven to be for naught by the time she turned 7.  RLS may not have even noticed the terrorist attacks of September 11^th – after all, she was only 8 at the time.  Her parents may have lost a bundle from the Enron bankruptcy or the dotcom bubble/bust, but this happened when RLS was just 9. Gay marriage began to be legalized by states (starting with MA) when RLS was 11.
• Teenage Years: As a 15-year-old, RLS may have been vaguely aware of the Foreclosure/Financial Crises, and she likely remembers when Barack Obama was sworn in as President when she was 16.  Osama bin Laden was killed in 2011, the year that RLS graduated from high school. The Sandy Hook school shootings occurred while RLS was in college, in 2012.

• Technology: RLS has never known a world without full use of the Internet and cannot fathom life without click-of-a-button access to unlimited information (reliable and otherwise).  Thus, RLS never has had to dig hard and do tedious research to find out the answer to a nagging question (like, “Where have I seen that actor from Mr. Robot before?” Answer -- in case you were wondering -- is that I previously saw Rami Malek in both the movie Night at the Museum and in the TV series 24.  And, yes, I just took 10 seconds to look that up. You’re welcome.) What a lifetime of having instantaneous, effortless answers to one’s questions does to one’s approach to the study and research of law is a question open to debate.  (Discuss.)

With the Internet as their baseline reality, not only do RLS and her peers lack experience in spending significant time wondering about and questing after unknown facts, but they are also quite used to the public disclosure and discourse of private details of everyone’s life. They’re also used to enhanced government surveillance of its citizens, the Patriot Act, and invasive airport searches by TSA.  

RLS has a vocabulary and life experience that equates with being born in the Internet age, and she is adept at all sorts of social media.  She is used to everyone being available 24/7 and immediate responses to her calls, emails, and texts. RLS has always been able to shop online and have instant access to new software, music, and videos downloaded directly (so much for “shrinkwrap”). 

• Assumption of Risk? During RLS’s entire life, her parents and the state have mandated that she stay safe by being car-seated, buckled up, and helmeted on a bike.

• Negotiable Instruments? RLS doesn’t use cash or checks to make purchases. She has always used a plastic card (debit or credit) or her phone to pay for things (maybe she’s even experimented with digital currencies).

• Environmental Law? RLS grew up worrying about the environment and global warming. For RLS, there have always been hybrid cars, wind farms, and solar panels on buildings and in fields.

• Labor Law? For RLS, the only significant labor disputes have been professional sports-related.

• International Law? In RLS’s experience and memory:
  • Prisoners have always been housed at Guantanamo Bay.
  • There has never been Apartheid in South Africa.
  • The countries of the Soviet Union, Czechoslovakia, and Yugoslavia exist only in history books.
  • Hong Kong has always been part of China.
  • It was Pres. George W. Bush (not his father) who sent troops to Iraq.
  • The currency in Europe has always been the euro.

• Health Law? Cloning has always been a scientific reality.  AIDS has always been a problem, but HIV-positive hasn’t been an immediate death sentence (in the US, at least).  Adults have been debating the role that the government should have in providing public health insurance since her birth.

• Pop Culture Context: For RLS,
  • It has never been a big deal to see women kissing women and men kissing men on television.
  • The term “wardrobe malfunction” has been widely understood since RLS was 10.
  • Ellen and Oprah have always been first-name-only TV talk show hosts. 
  • Michael Jackson was an embattled recluse defending against accusations of molestation until he died (when RLS was 15)
  • The “Royal Wedding” was when Kate Middleton married Prince William (RLS probably watched this - when she was 18). 

RLS likely learned to read with the Harry Potter series, the first of which was published when she was 3 and the last when she was 14 (meaning she never had to wait to read the sequel and she may have even – gasp – seen the movies first!).  RLS probably spent her teenage years reading the Twilight series and The Hunger Games. As a teen, she listened to Taylor Swift, Adele, One Direction, Justin Bieber, Beyonce, Lady Gaga, Kanye West, and The Black Eyed Peas.

As for television show references, don’t bother talking about Seinfeld or Friends in class – those shows went off the air when RLS was age 4 and 10, respectively. Reality TV is her norm. For RLS, Survivor and American Idol have always been on TV.   If you’re seeking some common ground, remember that RLS likely has spent time watching one or more of these shows: Game of Thrones, Suits, Homeland, Scandal, CSI, Breaking Bad, Mad Men, Big Bang Theory, Modern Family, Parks & Recreation, Glee, Pretty Little Liars, Sherlock, and Downton Abbey – but of course, she was watching them in high school! 

Do you feel old yet?

Or are you “Feeling 22” too?

Maybe The Knick Needs a Few Midwives

I am, I concede, an odd television fan.  I probably spend more time reading about television than actually viewing it.  I actually enjoy reading reviews of television programs that I have no intention of ever viewing. Occasionally, however, a review or series of reviews makes me want to see something for myself.

And so it was with "The Knick", a bravura Steven Soderbergh creation (now with its second season in production) -- a medical procedural set in a turn of the century New York City hospital. With almost its first scene a heartbreaking and gut wrenching failed cesarean section, whatever else The Knick represents, it is vivid. It is also somewhat clinically detached. Eventually we learn that the failed cesarian had been attempted unsuccessfully twelve times before by the same team. As one reviewer wrote, "The Knick uses historical distance to make sickness into something strange and unfamiliar, giving its doctors the aura of scientific adventurers." Adventurers they were. Later footage depicting brave experiments with unknown forms of anesthesia tip us off that the character of Dr. Thackery may, in fact, be based on extraordinary real-life surgeon Dr. William Halstead.  

It would be an understatement to describe Dr. Halstead as an adventurer. I do have to wonder if the series does him justice in one important regard. Noone comforts the crying (very soon to be dying) young cesarian candidate as she is wheeled into the operating theatre in "The Knick." It is apparent she senses she is near death but it is unacknowledged, although it is clear the risk is grave.

Dr. William Halstead, in fact, stood for a new gentler surgical approach, recognizing roughly handled tissues were often lost. No less than H.L. Mencken noted "[h]e showed that manhandled tissues, though they could not yell, could yet suffer and die."

The critics' reviews on "The Knick" are mixed. For each "Steven Soderbergh Made a Gilded-Age 'ER' and It's Riveting" review there is an equal and opposite "Surgical Strikeout."  "The Knick," it seems, suffers by comparison with  PBS's "Call the Midwife" (soon to be showing its fourth season with a fifth in production). "The Knick" is being criticized  for lack of character development when compared with the well-developed characters of both health care providers and patients in "Call the Midwife."

In all fairness, "Call the Midwife" has had far longer to develop the characters involved but these critics may have a point.  Patients in "The Knick" are often unnamed, breathtakingly mute or near-mute. Patients in "Call the Midwife" may even serve as recurring characters, as they did in Jennifer Worth's memoir on which the series, through season three, has been based.

Some of this is a difference in perspective. Jennifer Worth has left us her personal, professional, and spiritual autobiography in her three volume memoir of her time in East London.  Hers is a meditation on her personal transformation through service in a low income, low health literacy community. Over time, Jennifer Worth did not flinch to discuss the desperation of women with too many children and too little money. "Call the Midwife" is not for the faint of heart despite all those wonderful sepia colored images you may have seen of midwife Jenny Lee pedaling to a house call through the clotheslines of the East End tenements. The series itself is far grittier and Jennifer Worth's  memoir grittier still.

We will see where "The Knick" takes us.  Given that Dr. Halsted performed the first successful radical mastectomy for breast cancer in the United States, never mind transfused himself on the spot to save his sister's life post-partum, I can only imagine that more compelling drama is ahead. Oh, and did I mention he was a stickler for complete sterility in the surgical suite? I hope we get to see a more well-rounded presentation of this compelling, complex, and astonishing man.

And the mute young mother-to-be who never lived to grow into her role? She teaches us something as well about how the human touch, whether felt in carefully restrained surgery or attentive midwifery, can comfort and strengthen, even unto the last moments of life. 

 

Thank you to my friends at Prawfsblawg for the opportunity to visit with you this month and  for the opportunity to ponder things health law related.

 

 

 

(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 [email protected].

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 [email protected] or to Prof. Ediberto Roman at [email protected].

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).

Signing Off and Remembering Andy

Multitasking 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?

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.

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. 

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 Report	Mon - Thurs 11:30pm / 10:30c
Michelle Alexander
www.colbertnation.com
Colbert Report Full Episodes Political Humor & Satire Blog Video 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.

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.

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?

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.

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.*

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.

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.

 

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.

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.

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...

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.

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. 

 

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.

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. 

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.

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.

What Makes it Okay for Reporters to Trespass After Disasters?

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.

 

Who would be your graduation speaker ...

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

 

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?

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?

My Devalued Marriage

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.

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.)

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.