Perhaps Hu is exaggerating the dangers, especially with regard to the fundamental aspects of Chinese culture. It’s hard to imagine Transformers 3 doing much damage to Confucian ethics or the Chinese sense of community and solidarity. However, Hu is correct when he suggests popular culture can and routinely does promote certain values and modes of behavior. It is highly normative. Popular culture – films, television shows, cheap literature – have the potential to function ideologically, and consumers of popular culture in China as well as in the United States are encouraged to “get on board” with the social world popular culture imagines and promotes.

The answer lies, I believe, in the typical fan’s feelings about his or her lack of natural athletic ability.  It is one of the sad facts of life that there is no correlation between love of, and enthusiasm for, sport and the possession of athletic ability.  Consequently, the thought that some extraordinary event (or substance) might transform an average or below average athlete into a superstar performer is a very common fantasy, especially among males.

Over the years, this fantasy has generated its own literature.  My three favorite versions are the 1949 movie, “It Happens Every Spring,” Douglas Wallop’s 1954 novel, The Year the Yankees Lost the Pennant (which was the basis for the musical, “Damn Yankees”), and the 1962 comic book story, “Goliath of the Gridiron.”

“It Happens Every Spring” was written by Academy-Award-winning writer Valentine Davies who based the screenplay on a short story by University of Michigan administrator Shirley Smith (who despite his given name was male).  In the story, Vernon Simpson, a baseball-loving college chemistry professor at a small Midwestern college, accidentally produced, through a laboratory mishap, a liquid that makes anything it touches repellant to wood.  Simpson immediately realizes that a baseball coated with this liquid could not be hit with a wooden bat.  Thus, a pitcher who kept his glove moist with the strange substance would be able to throw unhittable pitch after unhittable pitch.

So inspired, Vernon abruptly resigns his teaching position and abandons his fiancé to travel to the ballpark of this favorite team, the St. Louis Cardinals.  Although the season is already underway, Vernon worms his way into a tryout with the Cardinals, and when his manager realizes that he has found an unbeatable, if somewhat flaky, pitcher, he immediately signs him to a contract and inserts him into the starting rotation.

Calling himself simply “Kelly” to disguise his real identity, Vernon reels off thirty straight victories as he pitches the Cardinals into the World Series against the powerful New York Yankees.  By Game 7, however, Vernon’s supply of his magic liquid is nearly gone, and he has no way of making any more of it.  Even so, his teammates expect him to pitch the penultimate game of the season, so he has to take the mound as his real self.  Miraculously, the Cardinals win the game 7-5 when Simpson, with the bases loaded in the 9^th inning, snares a vicious line drive with his bare pitching hand to preserve the victory.  His hand is badly broken, but that is really no misfortune since it gives him as excuse to retire from baseball without having to explain the sudden disappearance of his pitching ability.

Having had his moment of glory, Simpson decides to return to his previous life as a college teacher, if that is possible.  When he arrives with great apprehension in the small college town that he abandoned several months earlier, he is welcomed back as a conquering hero by his former students and colleagues (and fiancé), all of whom had already figured out that the great Kelly was their own Vernon Simpson.

The viewer shares Vernon’s triumphs and notices hardly at all that our hero reached the pinnacle of the baseball world by blatantly cheating every time he applied his magic liquid to the baseball.  In this world, at least, such sins can be forgiven.

In “The Year the Yankees Lost the Pennant,” the magical transformation is not the result of a strange chemical substance, but a pact with the Devil himself.  Melancholy and middle-aged, Joe Boyd is a married insurance salesman whose drab existence is made even more unbearable by the chronic failure of his beloved hometown baseball team, the Washington Senators.

In exchange for his soul, the Devil, now using the name Applegate, converts him into Joe Hardy from Hannibal, Missouri, who comes across like a combination of Li’l Abner and Babe Ruth, only more handsome and an even better ballplayer.  Like Kelly, Hardy gets a tryout with his favorite major league team, and his obvious talent wins him a spot on the roster. His batting and fielding skills are unmatched, and the now inspired Senators begin the long process of catching the Yankees in the American League standings.

Boyd was not completely oblivious to the consequences of selling one’s soul to the Devil, and as a good insurance man, he manages to talk Applegate into accepting an “opt out” provision in the contract that he signs.  On a specified date, not coincidentally set by Applegate for the day before the final game of the season, Boyd can cancel the deal without any further obligations. If Joe exercises the opt-out option, Joe Hardy will immediately turn back into old Joe Boyd, but Boyd will get his soul and his freedom back.

From the beginning Joe’s plan is to outsmart the Devil by playing so well that the Senators will have clinched the American League pennant before the opt-out date, at which time he can leave the team.  This way, Joe will save his soul but still guarantee his home city and his favorite team a long-awaited championship.  Boyd, of course, underestimates the Devil, who would never have agreed to a deal like the one Joe proposed, unless he was certain that Joe would not be able to exercise the clause.

As it turns out, the Senators play spectacularly well, winning game after game with Joe in the line-up. However, the Yankees, who may have a deal of their own with Applegate, do nearly as well, and with one game to go in the season, the Senators and Yankees are tied for first place.  Naturally, the final game pits the Senators against the Yankees.   Although he wants to return to his previous life, Joe realizes that he cannot let his teammates and his fellow Washingtonians down, so he accepts eternal damnation and lets the opt out date pass, just as Applegate knew he would.

Of course, the Devil is also a tremendous Yankee fan, and he had always intended to arrange another Yankee pennant, even while snaring Joe’s soul.  Unfortunately for the Devil, Joe plays even better than Applegate thought possible, and the Senators lead the Bronx Bombers by one run going into the 9^th inning with Applegate in the stands.

With two outs and the potential tying and winning runs on base, a Yankee batter hits a short fly ball between the infield and the outfield which seems destined to drop in for a double that will drive in the go-ahead run.  However, from his centerfield position Joe summons up every bit of athletic energy that he possesses and lunges furiously for the ball.  When it becomes obvious that he is going to catch the ball for the final out, the Devil, who loves the Yankees more than anything else in the universe, has no choice but to release Joe Boyd’s soul from captivity by changing Joe Hardy back into Joe Boyd.

Miraculously, the transformation of Joe Hardy back into Joe Boyd, with his 40-something-year-old insurance salesman body, does not prevent him from catching the ball.  In one glorious moment, he beats the Devil at his own game, and in doing so, he preserves both his soul for all eternity and wins the pennant for the Senators.  With the ball still in his glove he runs directly to the Senators dugout, where he sheds his uniform and slips back into his former humdrum life before his teammates and the reporters can catch up to him.

As with Vernon Simpson, the reader identifies with Joe’s dreams of athletic glory and breathes a sigh of relief when he narrowly escapes the fires of Hell.  Little attention is paid to the question of whether it was really fair for a supernaturally enhanced being like Joe Hardy to play baseball with ordinary humans inhabiting ordinary, albeit athletically talented, bodies, or if a championship won under such circumstances really means very much.

The final example is the comic book story, “Goliath of the Gridiron,” which first appeared in the Dec. 1962/Jan. 1963 edition of DC Comics’ The Brave and the Bold magazine.  The story was part of the legendary “Strange Sports” series and was reprinted in comic book anthologies in 1968 and 1970.  The story has, over the years, developed a cult following.

In the opening panels of the story, Jim Spencer is an outstanding botany and agricultural science student at Hartnell A&M University.  His problem though is that he does not want to be a highly regarded young scientist, he wants to be a star running back on the college football team, which, incidentally, is coached by his father.  However, unlike the star players that his female classmates swoon over, Jim has a scrawny build and no discernible athletic talent.

One evening, while looking in the forest for nutrient-rich potting soil, Jim comes upon a patch of eerily glowing dirt near where a meteorite had earlier landed.  Jim digs up the soil, takes it back to his lab, and plants a number of berry-yielding plants in it.  The next day, to Jim’s surprise, the plants have grown enormously and are already sprouting unusually large berries.   Putting two and two together in the style of the scientist-adventurer of mid-20^th century American popular culture, Jim realizes that if he eats some of the berries, they are likely to have a similar effect on his body.

Voila.  The next morning Jim is a Charles Atlas look-alike, and though his parents hardly recognize him, Jim convinces his father to allow him to try out for the college football team. With his newfound speed and strength, Jim impresses his father so much that he is quickly inserted into the starting lineup.  Although it obviously helps if your dad is the coach, his father’s confidence is quickly rewarded as Jim scores seven touchdowns in his first game.

Similar performances follow, and Jim is quickly the most popular man on campus and has attracted the attention of the gorgeous blonde, Betty Craks, the girl after whom he had long lusted.  Other stellar performances follow, but Jim begins to notice that his strength and speed, if not his physique, are starting to erode.  When he returns to his lab after a several week absence to ingest more berries, he finds that all of the berry plants have died, apparently from inattention.  Efforts to start new plants in the same soil produce no results, and a return to place where he had found the special soil several weeks earlier revealed that the glowing dirt had been washed away by subsequent rains.

Hoping to conserve his strength and energy so that it would last for the remainder of the season, Jim switches from halfback to quarterback because he finds passing less exhausting than running the football.  Although the spectacular quality of his performance drops a bit, he proves to be an able quarterback, and the team reaches the season ending game against State University with an unbeaten record.  Jim believes that he has just enough strength and energy left for one more game, if he paces himself.

However, on his way to the stadium on the day of the big game, Jim notices a young boy inattentively playing in the road in the path of a speeding automobile.  Jim dives for the young boy and knocks him out of harm’s way, but in the process, he breaks his own ankle.  Undeterred, instead of going to the hospital, he hobbles to the game.

The ankle clearly slows him down, and by the time that he arrives at the game, time has expired with Hartnell trailing State by a score of 7-6.  However, his teammates have just scored a touchdown, and Coach Spencer has courageously ordered the team to attempt a game-ending two point conversion. Depending of the result of this one last play, Hartnell will or won’t end the season as undefeated champions.

Jim convinces his father to insert him into the game, and even though he has to limp to the line of scrimmage, the State eleven are certain that the football is going to be given to the famous “Goliath of the Gridiron.”  Jim fakes an end run, but as the defenders converge on him, his teammate who actually has the ball runs into the end zone with the winning score.

In the final scene of the story, Jim has reverted back to his original nerd, agricultural scientist condition, but his girlfriend Betty, awed that Jim would risk his own life and football career to save a young boy, decides to stay with him even though his days as a football star are over.

Here again, the reader applauds the protagonist for his courage (and for getting the girl) and envies him for his season of football glory.  No one points out that Jim’s consumption of fruit irradiated with unknown substances from outer space was incredibly risky to his health.  Even worse, the giant berries transformed him from a 150-pound weakling into the equivalent of a comic book superhero, but Jim has failed to live up to the obligations of that newly acquired status.

Ordinarily, part of the deal that came with being a comic book superhero in the 1960’s was that principles of fairness prevented the uncommonly powerful figure from participating in ordinary athletic events.   Clark Kent never went out for the Smallville High School football team, and the original Flash gave up his athletic career after his first game with super speed when he realized that it would be unfair for him to compete against ordinary slow-footed mortals.  Jim, however, denied this implication of his new powers and went out for the team where he seemed to have no objection to running up the score against his outmatched opponents.

So, why do we root for the Vernon Simpsons, Joe Boyds, and Jim Spencers of fiction, cheaters all, when at the same time we hurl brickbats at steroid users like Barry Bonds, Alex Rodriquez, Sammy Sosa, and, perhaps, Ryan Braun?

The answer lies in the fact that our three fictional heroes only turned to the Devil, wood repellent liquid, and radioactive berries after it had become painfully clear that each had been denied by nature that most prized of qualities—athletic ability—and through no fault of their own.  Their actions were merely remedial.  The three men simply took advantage of the opportunity to use somewhat unconventional means to correct one of Mother Nature’s unfortunate injustices.  In doing so, they link themselves to their audience, which is full of people who have dreamed of the same transformative good fortune and who imagine that they would have made exactly the same decision had they been in the shoes of these characters.

But when Bonds, Rodriquez, Sosa, and, perhaps, Ryan Braun—men who are by nature unusually gifted athletes–turn to performance enhancing substances to make themselves even greater performers than they already are, they are engaged in a different kind of cheating.  Mother Nature was kind to them, but by trying to go beyond their already good fortune, they seek only to enhance an advantage that they already have over most of their former admirers.  By choosing to do this, they further distance themselves from the mass of humanity and from our sympathies.

The fictional Vernon, Joe, and Jim were everymen, and we share their triumphs and failures, because they are like us; Barry, Alex, and Sammy are athletic royalty who should have been content with the God-given natural talent they already had.  Instead, they broke rules because they wanted more. Like King Midas, their greed makes them deserving of whatever ill-fate that befalls to them.

On the other hand, if Prince Fielder departs for greener pastures this winter as expected, and if Ryan Braun spends the first 50 games of the season on the suspended list, the Brewers are going to be woefully short of great hitters this spring.  I wonder what type of deals Applegate is offering in 2012.

Let’s face it; most real lawyers are not as serious or somber as they have been portrayed for years across pop cultural mediums. Real lawyers like every other human being have their moments of weakness and self doubt, of romantic uplift and heartache, and of senseless comedic revelry. The development of the jester lawyer began with shows at the turn of the millennium such as “Ally McBeal” and “Boston Legal.” Both television shows featured large metropolitan law firms with a slew of jester lawyers for a cast. The humor however was based not in their humanity, but their quirks. The shows were just extended lawyer jokes featuring lawyers who were old and senile, neurotic and paranoid, or just plain weird, with catty women and dogs of men. In this era of television, while lawyers were beginning to demonstrate some depth through the moral issues they faced both in and outside their cases, and through their personal and romantic lives, the laughter was still aimed at the lawyer.

Two more recent lawyer comedy shows have hit the airwaves in the last few years and both, I would argue, feature jester lawyers as main characters who you laugh with more so than you laugh at. These two shows, “Drop Dead Diva” and “Franklin & Bash” feature young attorneys who often tap into their humanity to find creative and persuasive ways of winning their cases. These young attorneys both recognize and understand the things they are doing are both outlandish and likely unprofessional—but they invite the audience to laugh with them as they continue to seek justice in an often confusing legal system.

The audience in just one forty-two minute episode discovers that Franklin and Bash are more than attorneys; they are human beings (who one might like to grab a beer with some Friday night). They have their flaws. They are neither uptight nor too serious, but still face ethical dilemmas and personal challenges. They have good hearts and seek justice for their clients. This humanizing effect of the jester lawyer portrayal is further confirmed when the client in the season premiere says to Bash while discussing the effect of the case on his personal life and image, “For lawyers, you guys are almost human.”

“Drop Dead Diva,” now in its third season, features a character of similar depth and dimension. In the series premiere, Deb Dobkins—an aspiring “actor slash model”—dies in a car accident and wakes up in the body of Jane Bingum—a super-smart, slightly overweight attorney with a large metropolitan firm (Harrison Parker) who had been shot by the upset husband of her senior partner’s new mistress. Jane and Deb meld together into a blend of fashion-forward pop-cultural know-it-all and intelligent master of the legal profession. Both seem to be lacking something apart, but combine to create a character it is impossible not to love. With Jane’s legal wit and professional ethics, and Deb’s fashion sense and developed compassion, the lawyer that forms is one who can succeed in court but also come down to the client’s level and understand their feelings, motivations, and fears.

The main characters in these two newer legal comedies represent a new development in the pop cultural portrayal of the lawyer. While neither hero nor demon, nor caricature from a lawyer joke, these characters demonstrate the depth and dimension that attends being human. The audience is introduced not only to their professional careers, but also their personal lives. They struggle with legal issues, moral or ethical dilemmas, and significant others. Because they are portrayed as people to whom the audience can relate, their farcical behavior, which they recognize as such, gives the audience an opportunity to laugh with them rather than at them. This is arguably a wonderful next step in the pop cultural portrayal of the lawyer because unlike prior shows that placed attorneys in overly positive, negative, or comedic lights, the jester lawyer is a human being on equal footing with his or her audience.

The good news, participants in an “On the Issues” discussion Monday at Eckstein Hall generally agreed, is that the large majority of young people in the community are not involved in crime, that there are existing constructive programs involving thousands of youths , and those who went on highly-publicized sprees in the Riverwest neighborhood on July 3 and in and around the State Fair grounds on Aug. 4 are not typical.

The bad news is that it doesn’t take very many crimes to cause great harm, not only to the victims but to neighborhoods and the city as a whole, panel members agreed. Furthermore, criminals are getting younger and more violent, and the poverty which is so often the environment for criminals is getting broader and deeper in the city.  

The panel discussion, hosted by Mike Gousha, the Law School’s distinguished fellow in law and public policy, before an audience of about 200, followed the showing Sunday night at the Milwaukee Film Festival of a documentary, “The Interrupters,” about efforts to reduce youth violence in Chicago.

“The violence is highly concentrated, but its results affect everybody,” said Milwaukee Police Chief Edward Flynn. He said small percentages of repeat offenders and domestic abusers are responsible for a large portion of police calls in the city. He said progress has been made in fighting crime in Milwaukee and progress can be made through “consistent and persistent interventions” by police, working with the community.

The overall link between crime and poverty may be a complicated matter, but Flynn said it is pretty simple to describe in specific communities: “At the neighborhood level, crime causes poverty,” he said. “It destroys neighborhood capacity.” People leave, employers leave, and jobs leave when people don’t think they are safe.

Ron Johnson, who has been a leader in restorative justice efforts in Milwaukee, said, “It’s not all doom and gloom.” He described programs, such as one he was involved in last year at Milwaukee’s Pulaski High School, that helped reduce crime and gang problems, at least for the period while the program was being pursued actively. He said about 80% of youths who are brought into juvenile court don’t come back again. “The majority of our kids are resilient,” Johnson said. “There are so many positive stories about kids in our community that never get out.”

Barbara Notestein, executive director of Safe and Sound, said her organization works with 18,000 young people per year in the city and has had success in building social fabric many times. She said the group’s efforts focus on building the strength of communities, developing positive lifestyles among youth, and building collaboration between law enforcement and the community.

But such efforts clearly are not enough, given the impact violence is having on many neighborhoods. Judge Donald called for improved approaches to law enforcement to respond effectively – but differently —  to criminals who are dangerous and those who he labeled “annoying.”  Donald said, “We are spending an inordinate amount of money on just sequestration. “

Pedro Hernandez, a student at Marquette Law School who works with young people at the United Community Center on the south side, said he tries to understanding among those he is involved with that they have a future and that they should value their education. He said he comes from the same kind of background as many who have gotten into trouble. He said youths need to be listened to and more needs to be done to show them how to deal with the things that hurt them.

Milwaukee Mayor Tom Barrett was among those in the audience and at the end of the discussion was asked his thoughts. Barrett praised the efforts of people such as Johnson, Notestein, and Hernandez as examples of what can be accomplished by those who regard all the city’s young people as “our children.”

But, he said, “I honestly don’t know whether the region considers them ‘our’ children.”   

He said 46% of Milwaukee children are growing up in poverty and, he asked, “What is the future we’re sending to them? . . . We have to find a way so young people in our community have hope in their lives.”

The 75-minute sessions can be viewed here.

During the interview, Mr. Marche talked about how many English words were first used by Shakespeare.  Lawyers can thank Shakespeare for words like “negotiate”, “compromise”, and “circumstantial”.** The conventional wisdom is that Shakespeare invented those words, although Mr. Marche acknowledged that Shakespeare may really have been the first person to write down words that were already in use at the time.  (I think the latter may be more likely, although I do not claim to be an expert on this matter.)

The interview got me thinking about references to the law in Shakespeare.  A quick search online referred me to a 2009 conference at the University of Chicago Law School on “Shakespeare and the Law.”  Another quick journal and law review search on Westlaw showed a number of references to Shakespeare.

Do any of our readers have a favorite Shakespeare passage or play?  What are your thoughts on Shakespeare and the law?  What influence, if any, has Shakespeare had on the public’s view of the law and lawyers?  Did Shakespeare use legal concepts correctly in his plays?  Do you think that Shakespeare really coined all the words for which he is credited?  Is there anything that lawyers can learn from reading Shakespeare?

I very much look forward to reading Mr. Marche’s book.

*For more information on the interview, please see the Wisconsin Public Radio (WPR) website.  Veronica Rueckert interviewed Stephen Marche on Friday, July 22, 2011 at 9:00 a.m.

**According to the list of Shakespeare’s invented words posted at http://www.shakespeare-online.com/biography/wordsinvented.html.

Most obviously, the media played up the case to the nth degree.  The media time and again broadcast winning photos of Caylee and also seemed never to tire of a home video showing her singing “You Are My Sunshine.”  Viewers of the cable news shows also saw countless screenings of Caylee’s scantily clad mother grinding in bars while her daughter was still missing.  Then, too, has anybody not heard of the “bella vita” tattoo that Casey obtained shortly after Caylee’s disappearance?  HLN host Nancy Grace was especially relentless in demanding that Casey be convicted of her crime, and for the most part the public had decided Casey was guilty.

At trial, meanwhile, it seems the much-discussed “CSI effect” played a role. 

The reference is to the popular trio of primetime dramas, in which investigators use highly sophisticated forensic evidence to identify the true perpetrators.  Some prosecutors have argued that they now find it very difficult to get a conviction in a murder trial without strong forensic evidence.

In Casey Anthony’s trial, there was circumstantial evidence galore.  The prosecutors could show that the dead Caylee was wrapped in the Winnie the Pooh blanket from her own home, that Casey borrowed a shovel from her neighbors, and that she tried to blame Caylee’s disappearance on a nonexistent nanny.  There was also the strong smell that several reported coming from the trunk of Casey’s car, and the brutal discovery of the corpse in the woods close to the Anthony’s home.  However, there were no DNA results, hair samples, or other types of physical evidence that the prosecutors could use.  At one particularly bizarre point, prosecutors tried to use a “smell-o-meter” to determine what had been stinking in the trunk, but defense counsel argued effectively that the odor was as likely to have come from decaying food as from a decomposing body.  I don’t know if Casey Anthony killed her daughter or not, but I am confident that primetime television drama helped her to walk.

The case is still another example of the way the prosecution of a rich and/or famous person can be and frequently is presented to the public as a type of contemporary morality play, that is, as a dramatic allegory about temptation, sin, and – in the end – either damnation of salvation.  Comparable media packaging of cases involving O.J. Simpson, Michael Jackson, and Eliot Spitzer spring to mind.

The added twist in the Strauss-Kahn drama is that the featured player in the morality play is a wealthy and worldly European who found out the hard way about down-to-earth American norms and values.  The best comparison might be to the mass media’s packaging of the attempt to extradite the Polish filmmaker Roman Polansky, who allegedly raped a teenager in California.  Lionized by the French artistic community, Polansky squirreled himself away in Switzerland and in the end avoided the grasp of the American authorities.  Strauss-Kahn, meanwhile is under house arrest in Manhattan and waiting trial.  Might Attica be his hellish fate?

The Il Foglio article appears on the front page of the “Martedo, 24 Maggio 2011” edition, but since the article is in Italian, most of us will require the good services of colleague Irene Calboli in order to read it . . . .

To be sure, Oedipus did massacre Laius and his attendants following a dispute over whose chariot had the right of way — what seems to be an ancient instance of road rage.  Even if he did not know that Laius was his father, we might say Oedipus was culpable for a hyper-violent overreaction to a minor slight.  

But, if we are to be fair to Oedipus, we need to think about his culpability from the standpoint of the values and beliefs of his culture.  This was a premodern society in which male honor was a paramount value — think of Achilles, that Greek hero par excellence, sulking in his tent over a slight from his commanding officer while his comrades are being slaughtered on the plains of Troy.  And, indeed, I get no sense from either OR or OC that Oedipus was at all blameworthy for the crossroads massacre per se.  It was only the fact — unknown to Oedipus — that his father was the victim that made the event the horrifying moral transgression that it was.

If anything, Oedipus’s culpability may have been in the nature of what we would now call recklessness — consciously proceeding in the face of a substantial and unjustifiable risk.  Oedipus may not have known the truth, but he did get warnings — a rumor that the King and Queen of Corinth were not his biological parents, a prophecy that he would kill his father and sleep with his mother.  We might conclude that Oedipus must have been aware of a risk of patricide any time he used deadly force against an older man, and a risk of incest any time he slept with an older woman.  Knowing the risks, it was at least arguably culpable of him not to back down at the crossroads and not to decline the hand of Jocasta in marriage.

On the other hand, we must still contend with the costs of dishonor that Oedipus might have suffered at the crossroads.  Our concept of recklessness requires not only a substantial risk, but also an unjustifiable risk.  The dishonor of backing down at the crossroads might have been so high as to justify the risk of patricide that Oedipus assumed by fighting.  It’s also possible that Oedipus would have suffered dishonor by refusing the opportunity to step into the position of the dead King Laius (including his position in Jocasta’s marital bed), although I’m much less confident about that interpretation.

Even granting a recklessness-type culpability, there are still proportionality questions — the severity of Oedipus’s punishment should match the degree of his blameworthiness.  Although recklessness is blameworthy, we would regard it as a significantly lesser form of culpability than intentional wrongdoing.  Yet, in a society in which male honor is the highest value, Oedipus suffers what may be fairly characterized as a fate worse then death.  He is condemned to wander the country as a beggar, led around by his daughters.  His utter helplessness and dependence on two females must have been seen as among the most extreme forms of degradation imaginable.  Can recklessness really merit this fate?

Cross posted at Life Sentences Blog.

First, I stumbled across this fun blog called Prime-Time Crime Review.  The author is a real-life sex-crimes prosecutor named Allison Leotta.  She posts after each new episode of Law & Order: SVU with an evaluation of how realistic the episode was.  I could pitch this blog as a crim-pro supplement for law students, but really it’s much more entertaining than that would imply.  Sample comments on the October 14 episode:

What they got wrong: First, the dress the new ADA was wearing. Skin-tight red leather with ruffles? I don’t think so. But she did look amazing. But then she went over the top with her lawyering tactics. When the nutty professor came in to plea bargain with his high-paid lawyer, they argued and the prof asked, “Can I fire him?” The ADA answered, “Sure!” and got the prof a new (young, inexperienced) lawyer. That would never happen in real life. The criminal justice system is adversarial, which means the prosecutor cannot advise the defendant, hook him up with a defense attorney, or even talk to him alone once he has a lawyer. If a defendant asks a prosecutor for a new lawyer, she can set up a hearing where the judge can listen to his concerns and appoint a new lawyer for him. This was as realistic as Jennifer Aniston selecting the dress for Anglina Jolie to wear to the Oscars.

The blog reminds me of one of my favorite lines from my all-time favorite TV lawyer — while watching L.A. Law, Lionel Hutz sarcastically observed, “Oh, sure, like lawyers work in big skyscrapers and have secretaries. Look at him, he’s wearing a belt!”  

In a more serious vein, Ian Ayres at Balkinization posts on “Our Love/Hate Relationship with Carrots and Sticks.” Here is the set-up:

“The honeymoon is over.” These were the words of Alberto Iturra, the leader of a team of psychologists who instituted a series of prizes and punishments to change the behavior of the 33 miners trapped in Chile. The miners have now been pulled up to safety. But during the crisis, the psychologists used incentives to get what they wanted. When the miners did what the psychologists wanted, they were given treats like TV and music. But if miners refused, say, to submit to daily interviews with psychologists, the psychologists would restrict the supply of cigarettes or wine.

Your reaction to this story probably says a lot about where you fall on an important policy and cultural divide. As a society, we have conflicting notions about both the fairness and efficacy of incentives.

If you are viscerally repelled by the story, you can point to several experiments to support the idea that carrots and sticks are often counterproductive.

Ayres then reviews research suggesting when incentives are and are not effective: “[C]arrots and sticks work well when there is a simple set of rules and a clear destination. But they fail when more complicated forms of problem solving are involved.”

For me, the obvious point of connection (not discussed by Ayres) is with law-student preparation for class.  I have yet to speak with a law professor who is fully satisfied with the level of effort students put into preparing for class discussions.  Would more carrots and/or sticks help?  I assume that threats/promises of bad/good grades at the end of the semester are not effective tools to motivate careful day-to-day preparation.  I can’t think of any examples of carrots.  I suppose that one could offer cookies or some other treat to students who perform especially well in class, or for the whole class if everyone does well.  But I have heard of a number of professors at other law schools who use short pop quizzes at the start of class to motivate better preparation.  That sounds like a stick to me.  And I’m told that the threat of a poor quiz grade is indeed a helpful way to make sure that students do their assigned reading.  Then, too, there is also the Kingsfieldian threat of public humiliation if a student is not adequately prepared.

The Ayres post suggests that carrots and sticks might work if the goal is to get students to perform well-defined tasks, like reading and briefing assigned cases.  On the other hand, I’m less concerned with students doing those basic tasks than with students thinking critically about what the cases mean and how they relate to one another.  That sounds like the sort of higher-order task that is not susceptible to carrot/stick effects.

My final post of the week shares the delightful snarkiness of the first.  David Lat at Above the Law asks, “Who Is Yale Law School’s Most Disgraceful Graduate?” Other than Bill Clinton, the list of nominees is rather conspicuously tilted towards Republicans.  But Yale itself also gets a good skewering along the way, so there’s something here for everyone.

Three years later (1996), he briefly returned to the law (at least in a manner of speaking) when he won the lead role as a bohemian lawyer in the ABC sit-com, Common Law.  Unfortunately, Common Law was watched by no one other than David Papke and Gordon Hylton, and the series was cancelled after five episodes.  Giraldo was probably best known for the rants that he delivered during his frequent appearances on Comedy Central’s Daily Show with Jon Stewart.

Giraldo performed in Milwaukee a number of times during the past two decades.  An obituary that focuses on his early law-related career can be found on the Esquire Magazine website.

The staying power and influence of “Judge Judy” are noteworthy, especially for those of us in the law.  The show premiered in 1996, and Judy’s aggressive pontificating has inspired literally a dozen copy-cat shows.  Large numbers of Americans love to watch the good Judge and her ilk, and in Milwaukee it is literally possible to watch daytime judge shows continuously from breakfast to dinner.  Dasha Slater, writing in “Legal Affairs,” has dubbed the most avid viewers of these shows not “couch potatoes” but rather “court potatoes.”

Is there cause for concern?  On the one hand “Judge Judy” and the other daytime judge shows are only fleeting entertainment, but on the other hand they project and endorse a particular variety of courtroom justice.  It is meted out without the help of counsel and refined procedural rules by authoritarian figures prone to intense and stinging moral condemnation.  Maybe we’d be better off if people turned back to “Oprah.”

This week’s review of blog postings and news stories of note focuses on subjects that might seem trivial, but that interest me nonetheless.

1. Comic Books

My brother and I had an extensive collection of comic books when we were growing up.  We even owned two (two!) mint editions of Conan the Barbarian number 1.  If I still owned that collection today, it would easily pay for the first year of my daughter’s college tuition.

After reaching the age of puberty, I consigned my childhood love of comic books to the “trivial” category of youthful pursuits.  Perhaps that is why I was so delighted to read about the current exhibit at the Lillian Goldman Law Library at Yale University, entitled Superheroes in Court! Lawyers, Law and Comic Books.  As described by John Schwartz in the New York Times, this exhibit includes comic books with a legal setting, contracts and correspondence relating to legal disputes over the ownership of comic book characters, and reports submitted to Congress during the 1950s seeking federal legislation to address the alleged connection between comic books and juvenile delinquency.

Maybe I should start up my comic book collection again.  After all, the curator of the exhibit at the Yale Law Library claims that “[t]ons of lawyers are collectors.”  And it has been reported that President Obama is a big Conan the Barbarian fan. (Hat tip to Jaime and Mara)

2. Professional Football

I am well known among first year law students for my advice to maximize their study time by giving up trivial pursuits such as televised sports.  Professional football games, in particular, can eat up a lot of time that might be better devoted to the study of law.  For those students who refuse to give up their football, but who would like to pretend that watching the game advances their studies, Aurelia Schultz at The 1709 Blog has a good post on the copyright infringement case arising out of the original logo used on the Baltimore Ravens helmet.

It seems that Frederick Bouchat designed the logo for the expansion team-Ravens back in 1995, which originally consisted of the letter “B” with two flying wings attached.  The Ravens used the logo but paid Bouchat nothing.  After a first round of litigation resulted in a finding of copyright infringement by the Ravens, but concluded that Bouchart was not entitled to any damages, Bouchart and his lawyers embarked on a series of increasingly creative lawsuits filed against anyone and everyone who ever licensed or used the logo.  Meanwhile, the Ravens abandoned the original logo in favor of today’s depiction of a raven’s head with the letter “B” inside.

Finally, ten years after the original suit, Boachat’s serial litigation may be about to pay off.  It seems that the Ravens and the NFL assembled and offered for sale a highlight reel of Ravens football games that included footage of games where the team was wearing helmets with the old logo.  Bouchat sued for copyright infringement, and the United States Court of Appeals for the Fourth Circuit recently ruled in Bouchat’s favor.  The court rejected the Ravens’ argument that the highlight reel fell within the “fair use” exception to the copyright law, primarily because the sale of the  highlight reel had a commercial purpose and because the game footage used in the film depicted the entire copyrighted work in the context of its original purpose (identifying which players were on which team).  The court noted that the fair use doctrine might have applied if there had been an attempt to transform the copyrighted work for a different purpose (i.e., using the footage for a documentary on the topic of the legal dispute over the original logo).

Law students now have my permission to watch Baltimore Ravens games all season long in order to observe the practical application of the laws governing intellectual property.

3. Video Games

What could be more trivial than playing video games?  The news that a man sued the software manufacturer NCsoft over the game Lineage II, claiming that he became addicted to role playing video games, was met with derision by many observers.  Addiction of any kind is a serious matter, and should not be laughed off.  A thoughtful and sympathetic response to the lawsuit can be found on the blog In Third Person.  While doubting the legal merits of the plaintiff’s claim, the author of the post (a self-proclaimed ”20 year gamer”) points out the important distinction between substance addiction and behavioral addiction.  This distinction is not trivial, and it may ultimately limit the legal liability of the software company.

A more significant aspect of the case may be its relevance to the interpretation of software licensing agreements.  The trial judge denied NCsoft’s motion to dismiss, where the defendant argued that the standard licensing agreement that game manufacturers make gamers sign should be interpreted to absolve the manufacturer from this type of liability.  Steve Roosa at the blog Freedom to Tinker argues that the trial judge was correct to rule that the contractual limitation of liability does not preclude tort lawsuits.  He puts the pretrial skirmishing in this case into a larger context:

 The case law governing software license agreements has evolved dramatically over the past 20 years as cataloged by Doug Phillips in his book The Software License Unveiled. One of the recent trends in this evolution, as correctly noted by Phillips, is that courts will often honor contractual limitations of liability which appear in these agreements, which seek to insulate the software company from various claims and categories of damages, notwithstanding the lack of bargaining power on the part of the user. The case law has been animated, in large part, by the normative economics of Judges associated with the University of Chicago. Certain courts, as a result, could be fairly criticized as being institutionally hostile to the user public at large. Phillips notes that a New York appellate court, in Moore v. Microsoft Corp., 741 N.Y.S.2d 91 (N.Y. App. Div. 2002), went so far as to hold that a contractual limitation of liability barred pursuit of claims for deceptive trade practices. Although the general rule is that deceit-based claims, as well as intentional torts, cannot be contractually waived in advance, there are various doctrines, exceptions, and findings that a court might use (or misuse) to sidestep the general rule. Such rulings are unsurprising at this point, because the user, as chronicled by Phillips, has been dying a slow death under the decisional law, with software license agreements routinely interpreted in favor of software companies on any number of issues.    

It seems that there is a broader game going on, over the proper way to interpret contracts.

4. “Name That Tort”

Besides video games, there is another type of trivial pursuit common among first year law students.  At some point in their legal studies, they begin to notice all of the torts, both real and potential, that are taking place all around them every day.  At this stage, every law student who is cut off by another driver in traffic or else jostled in a crowded bus seems compelled to share their observations about the various breaches of duties and intentional torts that have just occured with all of their non-law student friends and family who happen to be in the vicinity.  It is actually quite annoying.  Medical students do the same thing, and anyone who has known a doctor in training has been on the receiving end of multiple unsolicited diagnoses and treatment options.

The explosion of YouTube and cell phone video recorders makes it easier to play this game than ever before.  No longer are you limited to postulating the legal consequences of the various torts that you observe first hand.  Now everyone can cruise the internet and debate the theories of liability that flow from conduct captured for posterity on the internet.  For example, over at Sports Law Blog, Michael McCann of the Vermont Law School has posted the video of a brawl that erupted in the stands at the U.S. Open.  What follows is a discussion of the possible legal aftermath of what is depicted on the video.  It’s a fun way to waste a few minutes and work your brain cells at the same time.

5. Trivial Pursuit: The Game

Finally, a belated recognition of the passing this past June of Chris Haney, one of the co-creators of the game Trivial Pursuit.  As you can see from this obituary, the success of the game had the predictable result of leading to litigation over who came up with the idea.  One such lawsuit even gave rise to its own trivia question: “Which Trivial Pursuit question has an intentionally incorrect answer?”

An earlier post described the career of Lavern “Lavvy” Dilweg, L ’27, who, after an All-American career at Marquette, played for the Milwaukee Badgers and Green Bay Packers in the National Football League.  After his playing career ended, Dilweg became a prominent lawyer in Green Bay and also served as a United States Congressman during the Second World War.

In addition to Dilweg, at least two other former Marquette law students—Claude “Biff” Taugher and Laurence “Mac” McGinnis—played in the NFL in the 1920s.  To this list could also be added the name of Paul Robeson, who studied informally at the law school while playing for the Milwaukee Badgers in 1922.

This article deals with the career of “Biff” Taugher, a war hero turned law student who played fullback for the Green Bay Packers during the 1922 season.  A second post will deal with Taugher’s teammate, law school classmate, and fellow NFL alumnus, Laurence McGinnis.

Claude Buckley Taugher was born in 1895, in Marathon County, Wisconsin, the son of country doctor P.J. Taugher and Mary Buckley Taugher. Taugher attended high school in Wausau, and at age 21 enrolled at Carroll College in Waukesha, where he played varsity football.

In 1917, Taugher’s college career was interrupted by the United States’ entry in World War I.  That year, he left Carroll College for the United States Marines, in which he was commissioned a second lieutenant.

Fighting in France in November 1918, as a member of the 6^th Regiment of the Marine Corps’ 2^nd Division, Taugher’s platoon successfully stormed the French village of Bayonville, capturing 61 German soldiers in the process.  Although wounded in the battle, Taugher refused to leave his troops.  For his “extraordinary heroism in action,” he was subsequently awarded both the Navy Cross and the Distinguished Service Cross.  Nine days after the incident at Bayonville, the Armistice was signed, and Taugher was discharged from the Marines as a first lieutenant on August 15, 1919.

Returning to Wisconsin, Taugher enrolled at Marquette for the fall 1919 semester and immediately became part of the football team. Initially enrolling in the college, he entered the law school the following fall (1920) as a full-time day student.

Marquette was a regional power in college football in the late 1910s and 1920s, and during Taugher’s three years on the team, the Hilltoppers compiled records of 6-2-1, 6-1-0, and 6-2-1.  Taugher’s first season with the team included both 20-0 and 31-0 trouncings of his former school, Carroll College, and a disappointing 13-0 loss to the University of Wisconsin.  (The Marquette-UW “series” ended after the 1919 season and did not resume until 1932.)

Clearly, the most highly publicized game of Taugher’s career at Marquette was the November 19, 1921 match in Milwaukee between Marquette and Knute Rockne’s Fighting Irish of Notre Dame.  In the post-World War I era, Notre Dame was universally recognized as the strongest team in college football—it went undefeated in 1919 and 1920, and from 1919 to 1924, it compiled an overall record of 55-4-0.

Undeterred, Marquette jumped out to an early 7-0 lead on a 4^th down touchdown by Taugher that followed a blocked punt.  Notre Dame scored to tie the game in the second period, but the game, described by the New York Times as “slowed considerably by a wet and muddy field,” remained deadlocked until the final period when the Marquette defense finally succumbed, allowing Notre Dame to hobble away with a 21-7 victory.

The Hilltoppers rebounded the following week with a 7-0 victory over Wabash in the season finale.  Not counting the Notre Dame game, Marquette outscored its 1921 opponents by a total of 130 points to 8, while keeping all eight opponents from scoring a touchdown.   (The 8 points came on two field goals and a safety.)  Besides the Notre Dame loss, the only two “blemishes” on the team’s record were a 3-0 loss to Creighton and a 0-0 tie with Ripon.

His college eligibility exhausted, Taugher appears to have either withdrawn or been dismissed from the law school after the fall semester of 1921.  In September 1922, he signed a contract with the Green Bay Packers, but only after assuring Packer player-coach Curly Lambeau that he had no remaining college eligibility.

Under the NFL’s own rules, teams were not permitted to sign players who still retained college eligibility.  The Packers had been expelled from the NFL in January of 1922 because of the team’s use of still-eligible college players the previous season, and while they were subsequently reinstated with new ownership, Lambeau was particularly concerned that the team sign no more ineligible players.

At the time of his signing, which predated the NFL draft by more than a decade, Taugher was already well known to the Packers, and not just because of his success at Marquette.  In 1920, following the conclusion of the Marquette season, Taugher had joined a team known as the Milwaukee All-Stars which scheduled a game against the Packers, then an independent professional team.  (Green Bay would join the NFL, still known as the Professional Football Association of America, the following year.)  Taugher had starred in the game, and two years later, his exploits in that game were still clearly remembered in Green Bay.

At the time he signed with the Packers, Taugher was 27 years old, and weighed in at 5’10” tall and 185 pounds.  He would be one of seven former Marquette football players who would appear in games for the Packers during the 1922 season.

Unfortunately, Taugher’s stint with the Packers proved to be quite brief.  Early in the season, he lost the battle for the starting fullback position to a 29-year-old rookie from Penn State named Stan Mills. As a Packer, Taugher played in only two games, one of which he started, and according to the Neft and Cohen Encyclopedia of Professional Football, in those two games he carried the ball only four times for a total of two yards.  However, one of his carries did result in a touchdown.

With a roster limited by league rules to 18 players, the Packers apparently concluded that they did not have a spot for Taugher, and the 27-year-old fullback was cut loose.  After starting the season 0-3-0, the Taugher-less Packers rebounded by winning four games and tying three in their final seven games.

Relatively little is known about the details of Taugher’s life after his departure from the Packers, but it appears that there were many bumps in the road in a life marked by deception, petty crime, and alcohol.  In the summer of 1923, Taugher was appointed head football coach of Mount St. Charles College in Helena, Montana, and his impending arrival was celebrated by the Helena newspaper.  Coincidentally, the Montana team, like Marquette in Taugher’s time, was nicknamed the “Hilltoppers.”  However, a story in the Helena paper reported that in addition to being a football star, Taugher was also a graduate of Carroll College and the Marquette Law School.  Neither assertion was correct, and one guesses that Taugher was the source of the misinformation.

However, by the time the 1923 season began Taugher was no longer the coach at the Montana school, and instead was engaged as head coach at his undergraduate alma mater, Carroll College of Waukesha, Wisconsin.  Whether Taugher resigned the Montana position when the Carroll opening appeared or whether he was fired by his new employer is not known.  (Somewhat ironically, Mount St. Charles College changed its name to Carroll College in 1932, and, still sporting that name, is today a leading small college football power.)

Alas, Taugher was no more successful as a college coach than he was as an NFL fullback.  Carroll went winless in 1923, and after the end of the season, Taugher’s contract was not renewed.

Taugher appears to have led something of a vagabond existence, dividing his post-football life between the Fox Valley, Milwaukee, and Washington, D.C.  He married Marguerite Heney in Green Bay in 1926, and the couple had four children, three of whom survived to adulthood.  Although Taugher lived in different places in the 1930s and 1940s, his daughters all appear to have graduated from high school in Green Bay.

While his stay with the Packers had been brief, he was apparently recognized as a member of the Packer family, and in 1928, he participated in one of the first Packer homecoming games in Green Bay, although reports of his appearance mistakenly referred to him as a prominent physician in Milwaukee.  In 1930, he was appointed to the position of Probation Officer in Milwaukee, but in 1935, he was convicted of the offense of drunk in public in Washington, D.C.  A similarly embarrassing incident occurred in 1943, when he resided in Appleton.

Taugher died on February 8, 1963, and was buried Milwaukee’s Wood National Cemetery.

Years after his death, Claude Taugher also appeared as a character in Clarence J. Rockey’s 2006 novel, The Tin Tie, which is a fictional account of a young German soldier from World War I who emigrates to Milwaukee and enrolls at Marquette.  The protagonist joins the Marquette football team where one of his teammates is Claude Taugher.  Taugher graciously befriends the young “Kraut,” even though he quickly learns that he and his new teammate had only a year earlier been trying to kill each other on the battlefields of Europe.

While I agree with Professor Papke that cinematic efforts involving the Supreme Court have resulted in dismal failures, there have been Hollywood movies that have addressed “constitutional” questions with some insight and sophistication. The key, it seems, is to focus on the constitutional issue itself rather than on the court that decides it. 

I have in the past incorporated a few films into my American Constitutional History class (though not this past semester), and I would someday like to offer a seminar that focuses on the treatment of constitutional issues in film.  An incomplete list of such films and their subject matter is set out below:

The Birth of a Nation (1915) – the meaning of the Civil War for American federalism

Gabriel Over the White House (1933) – the limits of presidential power in a time of crisis

Judge Priest (1934) – racial accommodation and the Constitution in the Jim Crow era

Mr. Smith Goes to Washington (1939) – the limitations of the American system of checks and balances

Meet John Doe (1941) – the problem of manipulation of public opinion in mass society

Inherit the Wind (1960) – the meaning of freedom of religion in a democracy

Dirty Harry (1971) – the legitimacy of the Warren Court’s expansion of the rights of criminal defendants

Walking Tall (1973) – the legitimacy of the Warren Court’s contraction of local and regional autonomy

Absence of Malice (1981) – the liability of the press for injuries inflicted by inaccurate reporting

Poletown Lives! (1983) – the limits of the eminent domain power; technically a documentary, but actually structured like a commercial film

Separate But Equal (1991) – the legitimacy of racial distinctions under the constitution (a partially fictionalized account of the case of Briggs v. Elliot, one of the cases decided with Brown v. Board of Education)

The only one of the above films that devotes a significant amount of time to the United States Supreme Court is the final one, Separate But Equal, and the depiction of the Court is the weakest part of the movie. The justices come off as narrowly drawn stereotypes, in contrast to the more fully developed parties to the case and their lawyers (although Sidney Poitier as Thurgood Marshall takes a little getting used to).

In 1947, Jerry Fairbanks Productions filmed a pilot episode of a show called Public Prosecutor, and when the show was picked up by NBC for broadcast in 1948, the company filmed an additional twenty-six episodes for the network.

Public Prosecutor starred John Howard (pictured above) as a prosecutor named Stephen Allen who both solved crimes and prosecuted miscreants.

In what would become the tradition of “good guy” prosecutors, Stephen Allen was much more interested in making sure that the actual guilty party was charged with the crime than he was in winning easy courtroom victories. (Star and narrator John Howard, whose real name was John R. Cox, is best known as the actor who played Kathryn Hepburn’s fiance in The Philadelphia Story and Fred McMurray’s boss on the long running television show, My Three Sons.)

Public Prosecutor is probably best remembered in the history of television for being the first television show to be filmed first and shown later. Earlier shows had been broadcast live.

Unfortunately, episodes of Public Prosecutor were filmed in twenty-minute installments — a common format for radio shows of that era — but in the fall of 1948, NBC decided to shelve the show in favor of another series whose episodes ran for thirty minutes, which had emerged as the new television standard.

Public Prosecutor sat in the can, unshown, until 1951, when its rights were purchased by the Dumont Network (one of the major players in early network television). To extend the episodes to thirty minutes, Dumont stopped the film just before the guilty party was revealed and brought in a panel to discuss what they had seen. The panel, along with the television audience, then tried to figure out “Whodunit?” Once the panelists had made their guesses, the film was restarted and the remainder of the episode was shown.

Public Prosecutor ended after the 1951-52 season, as no efforts were made to film additional episodes. However, surviving episodes from 1947-48 suggest that the show was quite good, particularly given the early date of its production. Two episodes, “The Man Who Wasn’t There,” and “The Case of the Comic Strip Murder,” can be viewed online at http://ctva.biz/US/Crime/PublicProsecutor.htm.  The former episode can also be see at http://www.archive.org/details/PublicProsecutor-CaseOfTheManWhoWasntThere.

What explains this very popular shift in imagery? Part of the reason is the general sense that crime has run amuck. Starting in the 1980s, a commitment to crime control replaced the drive for racial and economic justice as the preeminent domestic policy. Any politician on the local, state, or national level who seems “soft on crime” is doomed at the polls. More generally, the Reagan Presidency marked a national turn to the right, and in subsequent decades even the Democrats who have occupied the White House have been moderates. The heroic pop cultural prosecutor is well suited to crack down on crime and to embody conservative values.

Over the years, Law & Order became a genuine cultural phenomenon. The series’ popularity led to spin-offs and to countless reruns of both the original episodes and the spin-offs. In the end, Law & Order in all its forms not only reflected a public sentiment and emergent politics but also powerfully reinforced that sentiment and politics.

The latter flurry of films perhaps relates to the period’s especially pronounced campaign to end capital punishment.  In keeping with the often-heard assertion that Hollywood leans to the left politically, most of these films seem opposed to the death penalty.  Some express their opposition in the fashion of a “message film,” while others proffer more subtle dramatic narratives.

Despite their abundance and general tendencies, however, these films from the turn of the twenty-first century are, if subjected to more careful scrutiny, surprisingly ineffective cinematic expressions of opposition to the death penalty.  “Dead Man Walking” (1995), the most acclaimed of the films, includes superb performances by Sean Penn and Susan Sarandon but is disappointingly ambivalent about capital punishment.  Other films such as “The Chamber” (1996), “Last Dance” (1996), “A Letter from Death Row” (1998), “True Crime” (1999), and “The Life of David Gale” (2003) invite viewers’ sympathy for those sentenced to death by suggesting they were wrongfully convicted and sentenced in the first place.

As a result, the films stop short of truly indicting the hateful practice of capital punishment and of insisting all those facing death at the hands of a vengeful state should be spared.  The films do not grow out of a deep and profound love of humankind, surely the most powerful basis for opposition to the death penalty.  Despite their apparently progressive alignment, the films have been of little help in the campaign to end capital punishment once and for all.

Eric Goldman is not a fan.

Larry Solum is, and managed to fool me for the third year in a row! Lots of inside baseball, but these are pretty well done.

Google makes fun of its own trademark (see esp. the handy guide for how to use the name of their company at the end).

Cross posted at Indisputably.

As I listened to a few anectdotes and told a few of my own, I was reminded of the “mainland” in Second Life (r) (SL). I think of what I have been told about the reason that Houston “is the way it is,” generally meaning that there is a lot of mixing of buildings for public and private use and much city sprawl. I also begin to think of the mainland on Second Life (R). A chaotic place to say the least.

In an effort to better understand the basics of zoning, I looked it up in the dictionary and on Wikipedia. Here is a bit of what I’ve found. 

Webster’s says that zoning is “to partition (a city, borough, or township) by ordinance into sections reserved for different purposes (as residence or business).”  Wikipedia shows a more detailed, conflicted, and legally interesting view. After starting with a general overview of zoning in the USA, in which it states that zoning is the segregation of incompatible land uses, Wikipedia specifically states that Houstonians have three times struck down zoning in the city.  It further defends Houston, stating that many sunbelt cities have similar sprawl, which occured prior to the introduction of zoning. The article then went on to discuss law and a few notable cases, including Euclid v. Ambler Realty Co., the first (I think) and last facial challenge to zoning as a whole as unconstitutional.

I have a conflicted view of zoning myself. I don’t see  the sprawling city that I grew up in as a bad one, but its large size and highly mixed neighborhoods contribute to the increased use of personal vehicles and horizontal, rather than vertical, building habits. I see these things as part of the reason why Houston had to fight in the last few years to lose its title as the fattest city in the country, a title gained (pun intended) in 2005. I also feel that the relatively free use of the land better mimics the townships common in countries throughout history. Everything can and must be compatible. I think it gives homeowners more reason to be interested in the businesses in the area. If an adult book store and a factory can have the right to build up on opposite ends of your neighborhood, you will be much more likely to care about the business practices of both companies.

Also, I see zoning from the perspective of Second Life(r) (SL), which, like Houston, has no zoning. Many an avatar on SL bemoans the lack of sim planning by Linden Labs(c). The complaints are similar to those about Houston. There is a lot of mixing of buildings for public and private use, and the whole mainland seems to suffer from confused sprawl, but even more worriesome on SL is that the lack of restriction allows people to terraform the land as they wish – meaning that a mountain, a lake, and a plain may all be next to each other with no transition. Buildings in SL range from those that mimic real buildings to science fiction creations and nature recreations; they can be placed at any altitude and can emit light, sound, particles, and sometimes objects, at will. The land and buildings can interact with you. For example, if you wander off of the edge of the parcel where you are visiting a friend’s home, you may receive a welcome notice from the club next door and an invite to join the group that it owns, or you may get teleported to your home for trespassing on someone’s private property.The only unifying theme on the SL mainland is the road(s). The roads on the mainland start nowhere and lead to nowhere. They have no intersections and generally no traffic.

Whereas many of SL’s “islands” (sims owned by private parties) have covenants that restrict the usage of the land, even they are at risk of this convoluted mixing.  You may walk from one parcel that is a mountainous winter scene to another that contains a tropical island chain.  Here I am not conflicted about the need for zoning, although I find the disjointed buildings and land sometimes make me as frustrated as any one else.  I feel that the benefits of having the freedom to build what one likes, however one like, far outweighs any frustration that stems from encountering such confusion.

I’ll leave “why” I feel this way a cliff hanger, and invite all of you to my brand new blog, Life and Avatar Law. I have found that I like writing about SL from the perspective of a student of the law, and I hope that as my studies go on, my examination of the legal aspect of virtual living not only becomes more expert but also stimulates others to think of legal issues in the virtual world with more seriousness.

Thanks again to those who gave me this opportunity. I am very grateful for it and have learned a lot.

A quick skin change and some low key accessories later, you teleport out. A few seconds pass, and you find yourself among a group of people in shorts & skirts under the bright sun of Tropical Eden. You realize that the organizers of the contest you came to enter preferred tropical dress, so you popo open your inventory and change outfits, shorten your hair and put on different shoes.

Now that you are ready, you walk to the line that has formed. As you do, you notice the chat around you. “No furries allowed in the contest.” A well dressed wolf curses and disappears and a few tails come off. “Please no biting during the contest.” A lady behind you whispers to a friend, “That is what garlic is for.”

After a short wait, you walk onto the stage and up to the judges. The coordinator thanks you and tells you to whom you should send your application.Each judge asks you a couple of questions. You answer as you can, thank them for your chance to enter the contest.

You leave the stage, tp home, and log out. The next day you log in, look out your window at the snow and change into a winter outfit. A few friends invites you to go skiing with them and you accept. While you are skiing you get an inventory offer, a note card entitled “Congratulations Winners.” You open the note card and read it.

You are the second place winner. You’ve won 10,000 bucks, a photo shoot for advertising through the next month, multiple clothing and accessory prizes from the company sponsors. You are so excited you immediately tell all your friends and send a message to the coordinator to thank him. You don’t get a response, but you aren’t worried. After a bit more fun skiing and some chat at the ski lodge you head home.

At least, you try to head home. Your home is gone, not can’t-find-where-I-parked-my-car gone. Your home is… being returned to you with all the rest of your stuff because the sim that you lived on is an “invalid location.”

You send a message to your neighbor, the nice mermaid who lives in the cove next to your area of the sim. She says that she hasn’t tried to go home recently but has seen a few of her things returned and that she has heard from from a couple of the other six who live on the sim. You are a bit upset but need to go, so you bid her good day and log off.

The next day you log in, but you can’t look out the view at the snow because your home is still gone. You notice, also, that have been ejected from the land group and so will need to speak to the rental office to get back in, otherwise yo will not be able to place your house back on the land. You search for the real estate agent, who is surprisingly not your friend anymore. once you’ve found her name you send her a message. You get a busy response, “We apologize for the inconvenience, but the person you are messaging is a bot and cannot respond. Please send messages directly to the person from whom you purchased your land.”

You are a bit frustrated but remind yourself that you just won a lot of money and some fun stuff. You send a message to the coordinator, but he isn’t online. Slightly frustrated you log early that day.
A week passes. You find a new home on Sunny Paradise the sim that your neighbor moved to; she was a good neighbor before and is a good neighbor now. You find out that the sim on which you were living was repossessed because the owner was not paying the tier (taxes) on the land. Wondering where the 5,000 bucks that you paid the owner to rent your space went, you are glad that you will be getting some money coming in once you receive the contest prize.

Another week passes, and you receive an inventory offer, a note card entitled “Tropical Eden Contest Entry Form.” You accept it and notice that the contest is starting taking entries for the next cycle. Confused, you send a message to the coordinator asking about your prize.

He responds, “ty for participating in our contest; we found that you are using copybot sofwtare so have been disqulifie when you have change viewer plz be free to entr again.” Shocked and upset you respond that you have only the viewer downloaded from the website and that you want your prize. You also mention that there was no mention of viewers or anything else in the contest information. You get no response.

Barely holding yourself in check from berating this, obviously misinformed gentleman, you remind him that you paid 50 bucks to enter this contest and that you were declared the winner both in a note card and by general message. You still get no response. Angry and decidedly less inclined to socialize you turn down your friend’s invitation to visit a club that is having a ‘Best in tinies’ contest and log off.

–

Of course, by now, you realize that this scenario is about a ‘game’ or more accurately a virtual world. The entire scenario is fiction, both in the fact that it is virtual and the fact that I made it up, but the things that happened in this scenario do happen to avatars all over the virtual world Second Life® (SL). I hope for their sake that no one person has had to deal with all of these things.

I consider this scenario particularly intriguing, though, not just because of the inherent drama in such happenings but also because of the many hidden legal questions that I am learning to ask about them.

If these, or equivalent, things happened to someone in their real life, they would seek legal assistance, attempt to negotiate, and failing that file suit against both the real estate company and the contest coordinators, but in SL there is no law. Assuming the allegations about copybot software are untrue, everything that happened, including the blatant discrimination against “furries” is legal. Immoral, but legal.

Many of the things that happen on SL are minor in relation to their real world equivalents. For example, in this scenario you have lost 50L$ (L$ is the game money) which is equal to about ~$0.20USD. You have been deprived of 10,000L$ which is equivalent to about ~$40USD, and though you have had to move, you neither lost your home nor any of your personal property.

But those same things can have a major impact when compounded. The rental company made  40,000L$ (or ~$160USD) from you, your mermaid neighbor, and the other renters on the sim. The ‘well dressed wolf’ who was refused the right to enter the contest, suffers the oppression of blatant discrimination.

These are only a few of the many legal issues occur, like in real life, daily for an avatar in SL. This tension between the realities of life and the law and the entire absence of law in the life of an avatar is what changed my mind about the law. It opened my eyes to how greatly we all depend on the law and how important the legal profession is to those who need the kinds of assistance that avatars don’t have available to them.

—

And speaking of avatars and the law, the SL Bar Association, of which my avatar, Tigr Yoshikawa, is a member, will be hosting Bias in the Legal Profession March 17, 2010 at 12:00 noon, PST. Linda Batiste and Beth Loy from the Job Accommodation Network (JAN), West Virginia University will be discussing the professional work environment for lawyers with disabilities.  They will discuss barriers faced by attorneys with disabilities and what employers need to do in order to accommodate lawyers with disabilities.

The seminar will be held at The Sojourner Auditorium at Virtual Ability Island, in SL. Space is limited to 70 avatars. This event is free and has been approved for 1.0 hours of continuing legal education credit by the State Bar of California.  This seminar satisfies the specific requirement in California for one (1) hour in training related to elimination of bias in the legal profession.  (CLE provider is Fitz2  consulting, provider no. 14547)

Thank you, Professor O’Hear and Professor Slavin for inviting me to share my comments with the Marquette University Law School community. 

On my first day of law school, former Marquette Professor Eric Goldman informed our orientation group that, much to his own dismay, the practice of law is nothing like it is portrayed on television.  “What?”  I thought, “You mean cases can’t be tried start to finish in one hour?”  

Although I never truly expected that practicing law would resemble the television shows, I realized that there was value to be gained by watching these shows.  Not only do they offer a bit of light-hearted entertainment, but also an opportunity to test those years of legal education. 

One of the most recent newcomers to legal television is ABC’s new dramedy, “The Deep End.”  In “The Deep End,” five new associates join L.A.’s most prestigious law firm—Sterling, Huddle, Oppenheim, & Craft.  As the show’s title would imply, these associates are immediately thrown into the deep end.   I can appreciate that filming document reviews and the preparation of written discovery would not make for entertaining television.  I also understand that filming legal research in a law library filled with Pacific Reporters is better cinema photography than filming.  Thus, within their first week of practice, the legal neophytes are handling motion hearings, taking depositions, meeting with the firm’s major clients, and of course, groping each other, their support staff, and their clients. 

The groping is to be expected; after all, it is television.  But as we all learned in ethics classes and CLE seminars, the groping should never involve your clients (unless, of course, there was a relationship that preexisted the representation).  Also, no lawyer—whether a first-year attorney or an experienced litigator—should be representing a client in a pro bono case that creates a conflict of interest with the firm’s existing clients.  And if you learn that the opposing counsel (who also happens to be our young attorney’s father) has committed an ethics violation by destroying evidence, be reminded of our duty as attorneys to report such conduct.  As I so often heard in law school, no client or case is worth losing your license.     

 As a reality, firms often throw new lawyers into the deep end.  This “sink-or-swim” approach is a tried and true method of teaching the practice of law.  But it is a practice that should always involve a lifeguard.  My advice to younger attorneys is to seek out those lifeguards when you think you might be in over your head, whether it is a senior attorney at your firm or a trusted mentor.  Of course, the lifeguards still need to watch the pool.

The two films’ only similarity seems to be that they are indeed films.  One film is fictional, but the other attacks an actual Senator and Presidential candidate.  One is designed to entertain, but the other is designed to influence an election.  And most importantly, one is a work produced by the culture industry designed to make a profit, but the other is a work funded from corporate profits designed to change opinions. 

Are Justice Kennedy and the other members of the Supreme Court majority incredibly unsophisticated in their understanding of popular culture and politics, or is their analogy disingenuous?  Extending the inquiry, might a comparable question be posed regarding the Citizens United opinion as a whole?  The Supreme Court’s majority might be so oblivious as to think that corporations have the full panoply of First Amendment rights and that their financially self-serving broadsides are matters of free speech that enrich democracy.  Then, again, the majority might simply hope it can trick us into believing that.

I watch and enjoy these shows more than the average person, but I also remind myself that they have almost nothing to say about actual crime.  In particular, the shows are oblivious to the relationship between crime and socioeconomic class. 

The majority of the men and women our system deems to be “criminals” and an even larger majority of those victimized by crime come from poor families and poor neighborhoods.  However, to the extent primetime shows present underclass criminals, they do so without exploring the linkages between crime and poverty.  If a member of the underclass chooses to commit crime, the shows suggest, it is because that person is either fundamentally psychotic or convinced crime is easier and more profitable than working.

These shows can be dismissed as mindless entertainment, but I wonder if the shows in their own specialized way reinforce government policy.  The crafty detectives and police officials in the shows assure us that crime can be stopped, and the shows present crime itself as if it had no social moorings.  During the Reagan-Bush years, the country’s upper classes abandoned the “War on Poverty” in favor of a “War on Crime.”  The latter policy continues to makes sense to the bourgeois sectors of society.    

Today Vice President Biden issued a statement marking the occasion:

Violence against women is found in every culture around the world. It is one of our most pervasive global problems, yet it is preventable.  When gang rape is a weapon of war, when women are beaten behind closed doors, or when young girls are trafficked in brothels and fields – we all suffer. This violence robs women and girls of their full potential, causes untold human suffering, and has great social and economic costs….

Indeed, it is hard to overestimate the impact of pervasive violence against women in the lives of women, men, and children all over the earth.  According to a Radio Free Europe/Radio Liberty report,

The UN Development Fund for Women estimates that one in three women around the world has been beaten, coerced into sex, or otherwise abused.

It describes domestic violence against women as perhaps the most pervasive human rights violation known today.

Women are more at risk of death or disability from violence than from cancer, road accidents, war, or malaria.

This year, the UN’s campaign includes a new emphasis on men’s contributions to the efforts to eliminate violence against women, including the establishment of a new Network of Men Leaders, whose members include a wide range of prominent politicians, activists, and other leaders, including Archbishop Desmond Tutu, Spain’s President Jose Luis Rodriguez Zapatero, and author Paulo Coehlo.

The Network of Men Leaders in some ways hearkens back to the White Ribbon Day campaigns that preceded the establishment of the IDEVW in the UN. (You can read a history of White Ribbon Day here at Womankind’s website.)  The Radio Free Europe article explains that today, the international White Ribbon Day campaign “urges men to wear a white ribbon on their lapel to show that they oppose violence against women and children. Started in Canada, the campaign has spread to 50 countries, including Russia, Georgia, Armenia, and Azerbaijan.

Campaign organizers are particularly eager to recruit the support of leading athletes from such “macho” sports as rugby, on the grounds that they can set a positive example for young men to follow.”  For instance, today eighteen teams of New Zealand men ran a race, tied together with white ribbon, to mark this day of protest against violence against women.

Along similar lines, in his remarks today UN Secretary General Ban Ki-moon said that “men must teach each other that real men do not violate or oppress women – and that a woman’s place is not just in the home or in the fields but in schools, offices and boardrooms.”

Broadening the appeal of the campaign to men seems wise to me, and not only because violence against women cannot be reduced without men joining in the effort.  Also because, of course, as one commenter wrote in to Australia’s White Ribbon Day campaign blog, “children, women and men are all entitled to their inalienable human rights and . . . all violence against all people is wrong.”

The exchange in that blog post and the comments that follow, on the question of whether emphasizing the elimination of violence against women does harm to men and boys, is an interesting one, and there are valid points on both sides of that debate. But, in the end, the focus on violence against women, for a part of the year, seems logical, given that there is disproportionately so much more impunity for the perpetrators of violence against women, than for the perpetrators of many other forms of violence. Acts that would be recognized as horrific, anti-social violence when perpetrated against strangers, or for reasons recognized as political, are not viewed as so terrible if perpetrated in the contexts we call “private” or “personal”–within families, intimate relationships, workplaces, even rape.  Focusing world attention on why that’s so can only be for the good.