The sentiment among European politicians and artists seems to be that the extradition attempt is another example of uptight, moralistic Americans at work. Donald Tusk, the Polish Prime Minister, said Polanski was being victimized by vengeful Americans and their Swiss lackeys. The President of the German Film Academy was especially outraged because Polanski, an internationally acclaimed director, was arrested at a film festival. Franz Wagner, a German columnist, noted Polanski’s mother had died in Auschwitz and argued that Polanski should therefore be released “because he has suffered enough.” Perhaps the silliest comment came from French intellectual Bernard-Henri Levy. He thought Polanski, 43 at the time of the rape, should be forgiven for “a youthful error.”

Few of the European apologists or commentators have reflected how Polanski’s flight was an affront to the American justice system. Having pled guilty to rape, Polanski basically skipped bail and then continued to thumb his nose at the judge and courts for decades. This type of behavior is a more troubling matter for many Americans, given the central place a belief in the rule of law has in the dominant ideology. The rule of law is of course also held dear in Europe, but the Polanski affair makes clear Europeans are as likely to draw a sense of right and wrong from nationality, history, and a respect for art as they are to rely on a court of law.

 I would like to add to this discussion by sharing the comments of my brother, Jim Fallone, on the foregoing debate.  I am aware, of course, of the popular movie Adaptation, “co-written” by screenwriter Charlie Kaufman and his fictitious brother Donald.  In that movie, Charlie Kaufman takes the screenwriting process itself as the film’s subject, and plays with post-modern theories of authorship.  Let me assure you that, unlike Donald Kaufman, Jim Fallone is a real person.  Moreover, Jim Fallone has over 20 years of experience as an executive in the publishing industry, currently with Andrews McMeel Publishing in Kansas City, and is a published illustrator.  While this experience makes him dependent upon copyright law for his meal ticket, it also gives him some valuable insights into the creation and marketing of literary characters.

What follows, then, are the comments of Jim Fallone:

Ed, to begin with, you are fundamentally wrong (as is Professor Hylton).

It is true that The Catcher in the Rye can be viewed as art and as such can be viewed as a gift in the Lewis Hyde tradition.  However, there are moral and cultural value rules that separate a gift from usury, and that line of separation is not clearly defined and may vary from culture to culture. These rules are directly related to the broader context that exists within the society at the time.

When Cervantes wrote Don Quixote, authors of fictions and stories rarely got paid. It was the printer who tended to make the money, both by pirating printings of the original work as well and by commissioning and even writing many of the sequels to Quixote. You can argue that economically Cervantes was much like today’s blogger or fan fiction writer. The many fake sequels became viral marketing that built demand for the “official” sequel. This all helped to build Quixote awareness and to strengthen its brand.

But this is not the same context with which we view The Catcher in the Rye. This latter book is a successful and a real and viable commercial revenue generator. It is a business, and the livelihood of the author is directly dependent on the book’s own reputation as literature—as well as the mystery surrounding the author and his purposely limited output. Additionally the work was created as a commercial venture. It was intended as a commodity. It was created and sold for a price and intended to be resold for a price to the general public.

Cervantes we see today as an artist who created something new and who never received much money or benefit from it.  However, at the time of his book’s creation that is what he desperately sought.  Don Quixote was immensely successful but, because there were no laws to protect Cervantes, everyone but the author cashed in (both on the original and its varied unauthorized sequels). Don Quixote’s value as literature as we understand it today was only achieved after the author’s death. During his lifetime, it was viewed as the literary equivalent of Harry Potter, making the author’s poverty all the more tragic.

Professor Hylton chose Edward Bellamy’s 1888 Utopian novel Looking Backward, 2000-1887 to focus his comparison on. His first mistake was using a Utopian novel — there are no good Utopian novels unless you count books like 1984, Fahrenheit 451, and Brave New World which are about how there are no good utopias. Secondly Bellamy’s book was a parable for a political and philosophical movement. Each sequel was addressing the socialist model which was the protagonist. The characters and back story of the book were less than secondary and little more than clip art on a PowerPoint presentation. The very nature of the book was to prompt philosophical discourse on the author’s political views.

Looking Backward was successful. It made the author wealthy and had a measurable value as a commodity, but much of the author’s revenue actually came from the lecture circuit. The failure here is that there was no real intellectual property of value. The main character of the book– Julian West– held no exploitable value and the only character of any value was Bellamy’s socialist model. Bellamy was not Edgar Rice Burroughs, and the possibility of writing Julian West’s Adventures on Mars was not jeopardized by another author beating Bellamy to the punch. There would never be Julian West action figures. The cardboard characters of Looking Backward were proxies for the reader to observe the author’s socialist utopia. The character was merely a device.

In the case of Salinger– again looking beyond the words on the page– a significant reason for the work’s reputation and value as art is precisely the unusual absence of further exploration and exploitation. The mystery surrounding the reclusive author and the unknown future of Holden Caulfield are part of the whole that is The Catcher in the Rye. The value of the novel’s theme of a boy’s alienation and angst about the future are all the more poignant and urgent precisely because we don’t know what becomes of him. This allows us all to identify with Holden and use him as a prism for our own awkward adolescence.

The Catcher in the Rye should be considered a great work of literature and art in the same sense that Quixote is art, but the context when it was published and the marketplace and nature of intellectual property at the time of its publication make all of the difference. Salinger’s work is great literature, but it is also incredibly successful and it generates significant income for both the author and the publisher. Unlike Looking Backward, the measure of value inherent in the property and characters of The Catcher in the Rye are in part derived from the rarity of its exploitation and the intentionally unknown future of the main character Holden Caulfield.

Holden has become a recognizable likeness much like Batman, Homer Simpson, Harry Potter or Luke Skywalker. Permitting works by any other author that created an unauthorized canon to the world that Salinger created in The Catcher in the Rye would be the equivalent of writing a sequel to Star Wars in which Luke has a previously unknown bastard child with Leia, who subsequently becomes a fat alcoholic fascist ruler of the Empire and dooms the rebels to continued mediocrity for generations. There is no way that LucasFilm would allow their carefully created and detailed universe to be devalued, thereby jeopardizing the reputation of its brand.

This value goes beyond the movies to the action figures and lunch boxes. Both the massive world of Star Wars and the tight and reclusive world of The Catcher in the Rye rely upon the integrity of their vision and on the property’s reputation and myth for a major portion of their value. It’s not just telling a new story about Luke that is at issue, it is the creation of new characters and their designation as Star Wars characters. In the current context of publishing and retailing, it damages The Catcher in the Rye’s potential place in school adoption programs across the country if we permit others to add to the canon or to create confusion as to what should be in the canon.

The current system of publishing allows the good to rise and to be licensed and exploited to its fullest.  The bad will go out of print, where the rights will revert and eventually become public domain. Try to find Looking Backward in any Barnes & Noble book store today. The author made lots of money and the book was a bestseller, but most of the general public today couldn’t tell you who Edward Bellamy was.  Four hundred years from now, The Catcher in the Rye will still be considered a classic and taught alongside Don Quixote.  Allow Salinger the protection to insure that he receives the compensation for his work that Cervantes never had. Once Salinger has been dead long enough, and only then, the work will revert to public domain.

Until the current publishing model ceases to exist (and if you look at the music industry, it may not be long) there is no need to change what has worked just fine. No great work of creation is being inhibited or restrained by the copyright laws. The author of a sequel to The Catcher in the Rye had only monetary gain as a goal. If he has some great scholarly or critical contribution to make, there already exist fair use precedents that adequately allow for his ideas to be communicated. The desire to communicate these ideas as an organic continuation of Salinger’s work is the basest form of usury and as far removed from a gift as one can get.

Some law professors (and I do not intend to include my colleagues in this group) respond to these conflicted feelings by endeavoring to reduce the stress of law school.  They reject the Socratic method as unnecessarily antagonistic and outdated.  They reduce the workload, and their expectations of the students, in order to leave more room in the students’ lives for the “real world.”  They may even take a rather forgiving view of the grading process.  Their intention is to make the current generation of law students happier during their law school experience than these professors remember being during their own.

The odd thing is that, when law students are provided with this de-stressed version of law school, I have found them to be even less satisfied with their law school experience.  Law students come to law school expecting to be challenged.  They want to have their abilities tested, and even found wanting on occasion.  In some sense, when students find the law school experience to be too easy, the law school experience loses meaning for them.

I believe that it useful for both law professors and law students to view law school as the sort of “hero’s journey” described by the great professor of comparative mythology Joseph Campbell.  For Campbell, all myth serves an important role as a pathway to the understanding of the self.  In particular, mythology serves to help each individual understand their place in the world and in society.  The extended adolescence of modern life (children living with their parents until age 18 or older) makes it essential that the broader society provide rituals or ceremonies that mark the end of dependency and the beginning of the adult society’s acceptance of the adolescent as a fully participating member.  Without such clear markers on the path of self-development, modern man can experience feelings of alienation and self-doubt that were unknown in more primitive cultures.       

In his book The Hero With a Thousand Faces, Campbell describes the archetypical “hero’s journey” that he saw reflected again and again in world mythology as a metaphor for self-enlightenment.  First, an Everyman (or Everywoman) is called to leave their ordinary life and embark on a great adventure.  Then, the hero must journey into a dark world where he must endure various trials and tribulations.  Along the journey, the hero will encounter a teacher who will give instruction in the new skills that the hero needs in order to succeed.  At this point, the hero comes to fully understand, for the first time, the ultimate goal of his quest.  Armed with new skills and knowledge, the hero continues on the journey, facing challenges that push the hero’s endurance to the limit.  Finally, the hero reaches the ultimate goal, and finds that he has been changed by the journey.  The hero now returns to the everyday world, bringing back what he has learned in order to benefit the broader society.

Some critics objected that Campbell’s archetypical journey was so generic as to be meaningless.  The discovery of Joseph Campbell by George Lucas, who wrote Star Wars in a conscious attempt to apply Campbell’s theories, and by other filmmakers, has rendered the “hero’s journey” so familiar to moviegoers that it has become ubiquitous and therefore less powerful.  Nonetheless, there is something in Campbell’s theories that resonates.

We all see ourselves as the hero in our life’s journey.  We want to overcome obstacles.  We seek to acquire new skills and knowledge that will allow us to achieve our goals.  Above all, we desire some sort of tangible sign that we have been accepted by “adult” society.  For some (not all) students, a rigorous law school experience provides a path to accomplish these objectives.  Just don’t call me “Yoda.”

To those who worry that the stress and crushing workload of a traditional legal education can make students unhappy, I would quote the words of Joseph Campbell.  When his students asked, “what is the secret of happiness?,” Campbell replied, “follow your bliss.”  Happiness does not come from the ease with which you navigate through life.  Happiness comes from doing that which makes you happy.  The practice of law can be very difficult, but if you accept the stress and long hours as the cost of spending your career pursuing justice and stimulating your intellect, you will be very happy indeed.

But I found the latter error intriguing. Here I was, ostensibly the “author” of a post regretting “dominant ideological prescriptions related to, respectively, autonomous individualism and the bourgeois market economy.” It was as if someone had replaced my bedside Edmund Burke with Jean-Paul Sartre.

But here’s the thing. I do agree – in a sense – with David’s point.

If, in the terms David invokes, the author is part of a “collective subject “whose work is “trans-individual” in that it is permeated by others in its creation, then it seems equally probable that it is permeable in the ways in which it will be understood. This should be so quite apart from whether someone else appropriates parts of the work and turns it to a different purpose. (I once heard Rage Against the Machine used as part of a presentation at a corporate board meeting.) The “established forms” and “reigning sentiments” that the author invokes may, even because of the creativity with which he invokes them, provoke responses other than those he anticipated.

Of course, many works benefit from the contribution of others and all authors work in a social context that contributes to what they say and how it is read. But beyond that, an author – or, for that matter, a musicial or visual artist – loses control of the meaning of her published work. Others may understand it or use it in ways that she never intended, e.g., Ronald Reagan’s use of Bruce Springsteen’s “Born In the USA” as a patriotic anthem rather than an expression of irony and anger.

I don’t pretend to know what intellectual property law says about this. One can’t have a property interest in how someone perceives a work although one can, I suppose, have a property interest in controlling its use and exercise that interest in a way that hampers the manner in which the work itself can be used to furthers this unintended and undesired understanding. I guess that implicates, among other things, the concept of “fair use” and I have nothing to add to that.

But, as a matter of interpretation, I don’t think that there is anything wrong with reading a work or hearing a song in a way that its creator did not intend and, in fact, may categorically reject. My mother was a painter who always told me that a work of art (including hers) was not limited to an artist’s intent or interpretation.

On my personal blog, I occasionally post Sunday music videos (generally live performances) often around a theme and sometimes in support of some political or – more often – philosophical observation. (This post on theodicy was in honor of the beginning of my Law & Theology seminar.) Once in a while, a commenter, in high dudgeon, will say that Thom Yorke never meant that or Dylan repudiated his Christianity. 

I don’t care. They can point brilliantly to things in the world. But I get to say what it means to me.

Mom would be proud.

The exchange rekindled for me the intellectual question of how to best understand what an “author” is.  The notion of an “author” in modern western culture is a weighty one, carrying with it some sense of origination.  It connotes more than “writer,” which is a less prestigious characterization that goes primarily to a particular activity.  We customarily assume “authors” are intense and even tortured souls heroically working alone.  We also sometimes assume that their chief incentive must and should be monetary enrichment.  These assumptions grow out of dominant ideological prescriptions related to, respectively, autonomous individualism and the bourgeois market economy.

I think it is better to conceive of an “author” as socially constituted. 

This is obviously the case when two or more people write a work together or when manuscript reviewers, editors, or critics play major roles in the composition of a work.  In addition, according to cultural studies commentator Lucien Goldmann, we should recognize the manner in which a purported “author” belongs to a “collective subject.”  The “author” in this conceptualization not only consciously collaborates but also functions in a fundamentally trans-individual way.  He or she works in a set of social relations and draws on established forms, reigning sentiments, and anticipated responses. 

If we appreciate the way an “author” is socially constituted, we might actually enrich the experience of authorship.  As Ed Fallone reminded us in one his posts from last week, the rampant commodification of our era often has the effect of alienating a person from the fruits of his or her labor.  This is as true for a person who writes a novel (or a sequel . . .) as it is for somebody building a birdcage.  Indeed, many “authors” eventually become so alienated that they disavow their works or even urge the destruction of their unpublished manuscripts.  Recognizing the truly social in individual authorship can help protect the beauty, integrity, and empowerment of creative labor.

Some observers of the case have focused on its unusual grant of the plaintiff’s request for an injunction — this is a rare instance of U.S. law allowing a prior restraint on publication.  Other observers have debated the intersection of First Amendment rights and copyright protections implicated by the lawsuit.  In contrast, when I heard about the case, my thoughts turned to Don Quixote.

 Through end of the sixteenth century and into the beginning of the seventeenth century, the appropriation of characters and plots from earlier authors was a common literary practice.  In England, Shakespeare wrote plays that retold stories that had been told by other playwrights, and other authors in turn recycled Shakespeare’s plots.  Several different versions of Hamlet entertained Elizabethan audiences, although I believe that Shakespeare’s is the only version that survives to our day.

At the same time, in Spain, multiple authors were publishing books that detailed the adventures of the same characters.  Particularly popular were books about Tirant Lo Blanch, a brave knight who rescued fair maidens and battled horrible beasts.  There was no legal concept of ownership of this character in Spain, just as in England there was no concept that Shakespeare “owned” the character of Hamlet.

The first copyright laws date only to 1518, and they took the form of a monopoly that granted exclusive rights to a printer to publish a particular text.  It appears that copyright law was invented as a way of protecting the nascent printing industry.  It originally provided no legal protection to authors at all.  However, that would soon change.

 The novel Don Quixote was published in 1605 by Miguel Cervantes.  It introduced two iconic characters: a comical old man, who thinks himself a chivalrous knight errant, and his humble sidekick Sancho Panza.  It also slyly critiqued a social order in Spain that was dominated by both unproductive nobles and a repressive Catholic clergy.  The book was a huge success, and ten years later, in 1615, Cervantes published Don Quixote Part Two (thus proving that Hollywood did not invent the sequel).

One of the most famous parts of Don Quixote Part Two is its prologue, written in Cervantes’ own voice, which contains a vicious attack on a certain Alonso Fernandez de Avellaneda.  It seems that in the ten year interval between the publication of Parts One and Two, Avellaneda (which is probably a pseudonym) had published his own continuation of the adventures of Don Quixote and Sancho Panza.  In his prologue to Part Two, Cervantes insults Avellaneda without mercy, comparing him, for example, to a madman who commits imaginative and distasteful acts on the rear ends of dogs.

 The brutality of Cervantes’ verbal attack, and its literary quality, transformed Avellaneda’s own version of Don Quixote into an obscure historical footnote, forgotten by all but the most determined students of Spanish literature.  Ironically, a close reading of Avellaneda’s much ridiculed work demonstrates that it has real literary merit in its own right (as discussed here by my former Professor James Iffland of Boston University).  In particular, Avellanda’s version patronizes the character of Don Quixote and treats him as clearly insane, thus impliedly rehabilitating the portrayal of the existing social order in the first book and defending it from a damaging critic.  

Miguel Cervantes’ written attack on Avellanda’s use of his characters was unprecedented because it portrayed the derivative work as an intentional injury to the original author.  Moreover, the severity of Cervantes’ indignation suggested to the reading public that the harm Cervantes had suffered was very real.  People began to think about the rights of authors to control the use of their characters in a different way.  In 1709, the Statute of (Queen) Anne for the first time gave authors a legal monopoly on the reproduction of their work for a set period of years.  Thus was born modern copyright law.

So what is wrong with giving authors the right to control the use of their characters?  Copyright law is intended to provide an economic reward to the original creator, by granting him the legal right to prevent the use of his characters in ways that might diminish their value.  However, copyright law comes with an associated cost.  The fact that Colting’s novel may never be published in the United States illustrates that cost.  All of us bear the opportunity cost of all the derivative acts of creation that will never take place as a result of granting copyright protection to the original author.

It is true that some derivative uses of someone else’s characters are allowed, notwithstanding copyright protection.  Parodies and critical commentaries using established characters are permitted under the First Amendment.  However, this seems like an almost arbitrary exception to the original creator’s exclusive right to control his characters.  Other derivative uses of an established character can enrich our common culture as much as a parody or a critical analysis.

Why allow someone else to write a parody of The Catcher in the Rye, but prohibit a Holden Caufield sequel?  The sequel might be puerile trash, but it just might be a masterpiece in its own right.  Why not allow a third author to write a Holden Caufield opera?  Or a ballet?  I doubt that people would stop reading The Catcher in the Rye.  In fact, the sales of Salinger’s novel might increase.

One answer is that it is unfair for others to use Mr. Salinger’s character in order to make a profit for themselves.  But existing law allows some exceptions for parodies and critical commentaries that can earn a profit for their authors.  In addition, the law now extends the life of copyright protection beyond the life of the creator.  In light of this fact, it is difficult to argue that the protection of the creator’s exclusive ability to enjoy the monetary benefits flowing from his creation is the primary concern of the law.  

Every act of creation should be viewed as a gift from one person to all people.  Should J.D. Salinger have the right to gift our culture with an iconic character, and at the same time claim the ability to dictate how this gift can be used?  Even if his gift is misused or abused by others, Salinger has no moral basis to complain.  Arnold Weinstein, a professor of comparative literature at Brown University, was quoted as follows in a Wall Street Journal article about the case:

 The concept of authorship as a controlling authority is intellectually bogus.  Literature constantly reworks older things – authors send their characters out into the world.

It is only if we view the act of creation as a “sale” from the author to the rest of us that it makes sense to allow the author to place conditions on the use of his creation.

This is the crux of the problem.  Over time, the existence of copyright law has commodified the act of creation.  It is no coincidence that this process began in 1518 with the technological innovation of the printing press.  The commodification process accelerates with each new technological advance.

In our digital age, every consumer can purchase and enjoy a vast universe of cultural artifacts at the press of a button.  However, rarely do we spend any of our time engaged in the act of creation itself.  Most of us spend little or no time each day playing music, telling stories, or painting pictures.  Why should we bother, when it is far more convenient to purchase the creations of others?  The irony is that we are increasingly surrounded by our culture, but at the same time we are increasingly alienated from it.  By treating the creative act as a commodity, copyright law has facilitated this trend.

Today, our children are taught beginning in elementary school that it is illegal to use cartoon characters without first obtaining a license.  When my son was in first grade, I had to assure him that it was not against the law for him to draw pictures of Spider Man with his crayons.  I have no doubt that the holders of copyright in our country, the large media corporations that benefit from the commodification process, are behind the effort to encourage teachers to adopt a curriculum that exposes our children to the fundamentals of copyright law.

We have forgotten that our culture belongs to all of us.  We mistakenly think of “culture” in historical terms, and confine it to dusty books and ancient musical recordings that have “aged out” of copyright protection.  In reality, a culture is how a civilization defines itself in the present day.  We define our place in our contemporary world through stories, song and dance.

The key to profit in a service economy is to convince the public to pay for something that they used to expect to get for free.  We didn’t always pay such a high price for our culture.  The “fair use doctrine” once permitted a broad use of another author’s creations so long as no monetary benefit was received.  The initial success of Salinger’s lawsuit demonstrates how narrow the fair use doctrine has become.  This exception to copyright protection has been under a sustained assault by copyright holders for decades.  Like the western prairie before it, the “public domain” is slowly being fenced in and parceled out to the highest bidder.     

It doesn’t have to be this way.  We should eliminate copyright protection for literary characters.  If J.D. Salinger feels that his beloved character has been ill treated by others, then he can always respond in the same way as Miquel Cervantes: he can publish his own sequel.  Like Cervantes, Salinger can even include a vituperative attack on the upstart artist who has offended his creation.

If the public sees no merit in Colting’s creation, then Colting’s book will soon be forgotten.  However, let the rest of us decide for ourselves whether there is real merit in Colting’s creation.  Copyright law, as it is now structured, allows one artist to deny each and every one of us the possibility of other worthy works of art.

The baseball antitrust exemption has turned out to be one of the great anomalies of American law.  First recognized in the Supreme Court’s Federal Baseball decision in 1922 at a time when “commerce” was understood much more narrowly than it would be in the post-New Deal world, the exemption took on a life of its own in the 1953 Toolson decision when the Supreme Court acknowledged that professional baseball was commerce after all but that it was leaving the matter of invalidating the exemption to Congress.  In 1972, the Court reasserted the exemption in Flood v. Kuhn, and Congress reaffirmed it in 1999 in the Curt Flood Act in regard to all matters covered by the exemption except major league labor relations.

While there is no question that the Major League Baseball antitrust exemption still exists, it is not at all clear what aspects of the baseball business are protected by the exemption.  Does it apply to any undertaking by Major League Baseball, or is it limited to certain baseball-specific activities? Comments made by my colleague Matt Mitten in an interview presented elsewhere suggest that Matt believes that the exemption applies to all aspects of the professional baseball business.

I am not sure that this is true.  A quarter of a century ago the federal district court for the Southern District of Texas ruled that the baseball antitrust exemption did not extend to restrictions on broadcasting.  (Henderson Broadcasting Corp. v. Houston Sports Ass’n, Inc, 541 F. Supp. 263, 265-72 (S.D. Tex. 1982))  So far as I can tell this decision has never been overruled or even directly contradicted by a decision of a different court. Although the Supreme Court has provided no definitive answer, the conventional wisdom appears to be that the exemption applies only to matters central to the “business of baseball.”  This was the standard adopted in the relatively recent case, Major League Baseball v. Crist, 331 F.3d 1177, 1183 (11th Cir. 2003).

Of course this interpretation just replaces one question with another.  We still have to ask what aspects of the baseball business are “central” to its operation, and as of yet, we have no definitive answer.  Clearly territorial monopolies, minor league salary caps; and restrictions of minor league player mobility are central to the operation of baseball, but what else falls into this category?

Now Major League Baseball has gone and entered into a contract with Topps, Inc., giving that company the exclusive right to use Major League team names and logos with in the production of baseball cards. Topps’ primary competitor in the baseball card market, Upper Deck, can still issue baseball cards of players under its non-exclusive license with the Major League Baseball Players Association, but it will not be permitted to use team names or symbols on its cards.  As a practical matter, this will probably force the company out of the baseball card business, at least until Topps’ exclusive license expires.

It is hard for me to see how the production of baseball cards by an independent company could constitute an activity “central to the business of baseball.”  There was a time when baseball cards were a primary way that fans, particularly young fans, learned about the teams and players of Major League Baseball, but in the age of the Internet, it is hard to believe that baseball cards are in anyway a necessary component of marketing Major League Baseball to the public (if they ever were).  Consequently, the new Topps monopoly will likely to be found to be subject to antitrust challenge.  Whether or not the challenge will succeed is a topic for a different post.

On an entirely personal note, I have extremely fond memories of the old Topps baseball card monopoly that existed from 1956 to 1980.  In that period, only Topps produced baseball cards, and the cards were printed on cheap cardboard, packed to the gills with information about the pictured player not otherwise readily available, and packaged with super sweet sticks of bubble gum.  Even with the gum, they were incredibly inexpensive—a penny a card until the late 1960’s, and less than two-cents a card until the late 1970’s.

There were almost no baseball card shops in that era, so cards had to be purchased by the pack in regular stores that sold candy.  If you were missing a player’s card that you felt you needed, you had to buy more packs or else figure out a way to trade with a friend who had a card of the player you wanted. Many kids learned the rudiments of negotiation from such exchanges.

In fact, the only problem with the old Topps monopoly was that it wasn’t a true monopoly.  Fleer, which competed with Topps in the larger bubble gum market managed to sign a few well-known players including a handful of stars—Ted Williams, Maury Wills, and Wilmer “Vinegar Bend” Mizell (who was later a congressman from North Carolina) for example—but the company never had enough players under contract to produce its own bubblegum based player set.  In 1962, the year he was the National League’s Most Valuable Player, the only way to get a Maury Wills baseball card was to find one on the back of a Post Cereal box.

Because the Topps monopoly only applied to cards packaged with bubblegum or its equivalents cards could be marketed with other products, although that rarely happened.  (The Post experiment of putting baseball cards on cereal boxes only lasted for three years.).  In that era, no one thought of simply marketing the cards alone.

If the new Topps monopoly can somehow bring back the magic to baseball card collecting, then it will be a restraint of trade that we should gladly accept.

We certainly could see much of the harm unfold on the news and talk shows. Professor Gates, a highly respected scholar, gets arrested in his own home by a white officer. He (and many others) believes he has been treated unfairly because of his race. The officer, who with his fellow officers, including an African-American, believes he was doing his job because he is investigating a possible home invasion and has a man, in his opinion, who is uncooperative and verbally abusive. And we have a highly respected president, who usually is extremely careful with his words, announce that despite the fact that he does not know all the facts, that the police acted “stupidly.” Then we went on to learn that Lucia Whalen, who called in the suspicious behavior at Dr. Gates’ home, is now receiving death threats and being called racist despite the fact that she never volunteered anything about race to the 911 operator. We can then imagine the harm to the Cambridge police department, the African-American community in the Boston area, the family members of everyone involved and then of course the harm to the thousands and thousands of others who experience the renewed pain of some bad police/community member relations all over this country. We have some political pundits characterizing all police as men and women who routinely engage in racial profiling (never acknowledging that never does an entire profession engage in bad behavior so that the “good cops” are thrown into the same description as the “discriminating cops.”) Those kinds of comments not only demoralize police departments but also devastate family members of law enforcement officers. We have once again publicly displayed acts of racism (a Boston officer writing a letter describing Professor Gates as “banana-eating jungle monkey”). We know that the wounds of racism and profiling in this country are justifiably deep and painful. And we have a president, who is trying to focus on our national health care crisis, in part because of his own words, being embroiled in these events. There is not a question in my mind that this was an opportunity for all of us to watch and learn a better way to move forward other than our continuous name calling.

Restorative justice practices involve people who have been harmed having the opportunity to be heard by those they believe played a role in harming them. In our MULS restorative justice program, we routinely have victims, or family members of victims of crimes of severe violence request a meeting with the perpetrators (including murderers, rapists, and robbers) so that they can tell them, across a table, how deeply they have been harmed by what the other person did. Unlike the White House meeting, these dialogues can often take up much of a day. A victim/survivor can describe the pain that was caused and the “ripple effect” of the other’s actions. The offender learns the depth and breadth of impact of his or her actions on a myriad of people. The dialogue then often continues so that the victim can ask the offender about his or her life and how it is that this person came to harm him or her. What life experiences brought the offender to that moment? Most offenders apologize for their behavior. (We do not conduct these dialogues unless the offender admits at least some of the alleged criminal conduct.) Hearing about people’s life stories humanizes them and helps us understand (but not necessarily approve) of why others have acted in a certain way. From that place of understanding, we, as community, can better find ways to move forward in a positive way.

On a very regular basis, our MULS Safe Streets community coordinators, Ron Johnson and Paulina de Haan, conduct restorative justice talking circles in Milwaukee’s central city with victims, neighbors, police, offenders, prosecutors, church members, offenders and other community members. I have watched these groups of people weep as a Milwaukee police officer describes finding a two year little girl with a bullet hole in her forehead and quickly picking her up. He told all of us that the little girl took her last breath in his arms and that her death has haunted him since that moment. He looked at the others in the circle and said, “I never go to a call for a shooting without taking her with me.” I believe that there is no one who was there that day that still believes that “all police don’t care.” On another occasion, we had a gang member describe that when he was 7 he was sitting on the kitchen counter watching his mother prepare the Thanksgiving turkey. All of sudden tires were screeching and he heard the sound of gun shots. His mother threw him down onto the ground and then fell dead in front of him with three bullet holes in her back. He then was placed with family members in the Chicago projects where he grew up in violence. No one will ever condone what he has done, but after the circle a police officer went up to him and told him that he now had a better understanding of how he got there. We have seen officers actually go out and help serious offenders find employment after they have heard the stories in the circle.

Finally one older African American man told his story of calling the police about shooting on his street. He told them that he would be sitting on his porch in his white shirt waiting for them. When police arrived, the police pointed guns at him and told him to get up and then lay down on the ground. It took quite some time for them to acknowledge (without apology) that he was the person that had called for help. The police in that room truly got to hear what that horrible experience was like for that older man. That story telling and more important listening (and truly hearing) by others brings much healing and new understanding to everyone in the room and hopefully more sensitivity in the future. What happens during these dialogues or circles is that everyone present learns more about people’s experiences and perspectives. Invariably, people will see that in our humanness we are all much more alike than different. We all have had terrible experiences in our lives (obviously some much worse than others). People who hear those stories will often ask themselves, “what would I have done under those circumstances?” or “how would I feel about what I have done if I had lived that other person’s life?” From that understanding we can build human bridges of understanding that help “good and progress come from the bad.”

I do have some regrets about the way the White House handled this dialogue. I wish they had asked Lucia Whalen to join the discussion. She was an integral part of what happened and may be the only one who appears to have done everything right. Her voice should have also been heard at that meeting. She could have told them that each of their actions has led to more people calling her a racist and accusing her of causing national turmoil. Although her actions of calling 911 certainly set this series of events into action, she was just being a good citizen and reporting a potential problem in her neighborhood. She never volunteered the race of the men she saw and in fact when asked told the dispatcher that she was not sure of their ethnicity. It would have been good for these three men (including the president) to hear how their actions in all of this have made her life very difficult.

I also regret that the White House did not get a trained neutral restorative justice facilitator to shape the discussion. As good as the president is at bringing people together, he was not neutral in this incident. He was friends with Professor Gates and his words had certainly contributed to the harm from the events, particularly to the Cambridge Police Department. Although the image of the men sitting around the table in the White House garden was a good one, it would have been helpful for us in the greater community to learn more about what each of them learned from the discussion. Professor Gates and Sergeant Crowley have indicated that they will continue to talk. Hopefully they will bring in the community into that dialogue.

When it is all said and done, it does not really matter who drank what beer. It does not matter who wore what to the meeting. But hopefully we all will learn from this high profile meeting at a round table (like a circle) that when people have caused harm to each other by having made certain choices or are in serious conflict, it is important for everyone to slow down, ratchet down the level of anger, accusations and name calling…from “racist, to immoral to stupid to evil to without conscience” and actually create an environment where people can have a meaningful dialogue about what has happened, how everyone sees the situation and how they and all of us can work together in a positive way to prevent future harm. If we can do that, then we are good students learning from that proffered “teachable moment.”

If anyone is curious, here’s the full list:

1. “L.A. Law” (1986-94)
2. “Perry Mason” (1957-66)
3. “The Defenders” (1961-65)
4. “Law & Order” (1990-present)
5. “The Practice” (1997-2004)
6. “Ally McBeal “ (1997-2002)
7. “Rumpole of the Bailey” (1978-1992)
8. “Boston Legal” (2004-08)
9. “Damages” (2007-present)
10. “Night Court” (1984-1992)
11. “Judging Amy” (1999-2005
12. “Owen Marshall: Counselor at Law” (1971-74)
13. “JAG” (1995-2005)
14. “Shark” (2006-08)
15. “Civil Wars” (1991-93)
16. “Harvey Birdman, Attorney at Law” (2000-9)
17. “Law & Order: Criminal Intent” (2001-present)
18. “Murder One” (1995-97)
19. “Matlock” (1986-1995)
20. “Reasonable Doubts” (1991-93)
21. “Law & Order: Special Victims Unit” (1999-present)
22. “Judd for the Defense” (1967-69)
23. “Paper Chase” (1978-79, 1983-86)
24. “Petrocelli” (1974-76)
25. “Eli Stone” (2008-09)

This “great” debate of the Eighties morphed, though, in the Nineties, into a more interesting debate about, strangely enough, the performance artist’s relationship to copyright. Michael Jackson often sought to own publication rights to songs and maintained that as a source of revenue. Famously, in the mid-1980s, Jackson purchased half of the Beatles catalog for 47 million; he later sold that property to Sony for 90 million, and indeed at his death, that catalog alone is potentially worth 500 million.  He also owned the separate catalog of his work. He did not exercise, however, his performance rights as extensively. Notably, at the time of his death, the actual funding for his contract tour was provided by outside investors.

Prince, on the other hand, fought a very public battle (remember his five-year career as The Artist Formerly Known as Prince?) with Warner Brothers to be released from both his publishing and recording contracts. After the end of that fight, he moved onto innovative ways of distributing his work so as to build an audience for his touring (which he views as his primary way to make money). Prince also began to exercise much more control over his image (did you know that the name Prince is now trademarked?) Indeed, the “Prince” model–increasing independence from record labels with one’s primary source of income deriving from concerts and other uses of their image–is often suggested as a way for artists to command income in the era of digital downloads.

Publish or Perform? The question as we look today at Michael’s death: did Prince win after all?

And don’t get me started on Madonna and The Right of Publicity!

Campbell served three combat deployments, two in Iraq and one in Afghanistan. In Iraq, he commanded Joker One, a platoon of new Marines that he trained and transformed into a fighting unit. They were assigned to Ramadi, the capital of the Sunni-dominated Anbar province where they engaged in daily house-to-house combat with insurgents. Campbell has written a memoir about his experiences with the platoon called Joker One: A Marine Platoon’s Story of Courage, Leadership, and Brotherhood.

You can read the NY Times Book Review here.  Among other accolades, Campbell was awarded the Bronze Star with Valor. I can proudly declare that Donovan and I were high school classmates in Texas. Accordingly, I can personally attest that Donovan was then (and surely remains) a man of the highest integrity, in and outside the classroom, and on and off the sports field, where he excelled as a true scholar-athlete.

One episode from the angst-ridden days of high school illustrates Donovan’s character. I fondly recall that the spring semester senior year he gave up time from track-and-field and made a self-effacing foray into “my” realm of thespian endeavors, donning Musketeer garb as a commedia dell’arte palace guard in Carlo Gozzi’s Il Re Cervo (The King Stag) and standing ramrod-straight and bellowing “Sir, Yes, Sir!” USMC-boot-camp style.

At the cast party after the last performance, which would be my final show to stage-manage in high school, I choked up and felt some silly teenage tears flow. Donovan came by and shared with genuine fraternal care and without a shred of condescension, “Peter, it’s ok. I cried after our last football game.” Picture the scene: a modern Atlas and Texas-bred lineman, who had broken many weight-lifting records at school, while still graduating at the top of our highly competitive class, nonetheless (to use a popular phrase de jour), having the “empathy” to show his own feelings and console a weepy high school drama geek. At that moment, I felt like one of William Wallace’s clansmen in Braveheart.

More seriously, I can also still remember during one Theology class Donovan offered, without any Pharisaic pretentiousness, a definition of integrity: “what you did when no one was watching.” Cf. Plato’s Ring of Gyges, perhaps?  As such, I was not at all surprised to hear Donovan comment on ethics, leadership, and his professional responsibility as a Marine lieutenant in a war zone, and now as a business leader in the marketplace. From the Harvard Business blog (with emphasis added) earlier this year:

Donovan Campbell is currently a Zone Sales Leader Designate working for Frito-Lay in Dallas, Texas. He returned to Frito in September from a year-long involuntary military recall, during which he helped Special Operations Command Central start its Tribal Engagement Initiative in Afghanistan. After four years as a Marine Corps infantry officer, intelligence officer, and sniper platoon commander, including two tours in Iraq, Campbell graduated from Harvard Business School.

In this time of the public “apologies,” spin, finger-pointing, and disingenuousness and cowardice from members of both parties, one selection from Donovan’s book (on which he commented on-air) particularly struck me:

Because of my decisions, one of my Marines had lost both of his legs. It may not have been my fault, but it was certainly my responsibility because everything that happened to my Marines was my responsibility. That’s one of the first things you learn as an officer, and if you’re a leader who’s any good at all, then as you go on you know that you always err on the side of taking too much responsibility until the weight crushes you, and then your men pick you up, and then you take still more responsibility until they need to pick you up again.

Upon reading these words, I recalled a March 2005 story on Campbell’s missions in Ramadi [see p. 10ff], in which one of Campbell’s squad leaders declared, “Most platoon commanders would have positioned themselves within the platoon…[b]ut Lt. Campbell is the kind of leader who wants to be there when the initial contact is made, so he leads from the front. He always says that if something is going to happen, he’d rather it happen to him than to his guys.” I can earnestly hope that Marines, such as my brother-in-law Pfc. J.H. Bascom, serve under such “servant-leaders,” as Campbell so termed his office in the NPR interview.

I also wonder what would happen in the worlds of law, business, politics (e.g., past and present administrations), organized religion (e.g., some US Catholic bishops), et cetera, if those in positions of authority erred on the side of taking more, rather than less, responsibility for the consequences of their decisions and actions, even when they are not personally at fault. I audaciously hope for more servant-leaders like Donovan.

My take on same-sex marriage begins with my personal experiences with same-sex couples, and homosexuals in general.  If the law treats them like second-class citizens, and my experience shows me that this is just not right, then I look to the law to make sense of why this treatment must be so.  And I cannot find the justification.

The first time I met someone I knew to be gay was in the Navy.  I met many during my service.  On our boat, the presence of gay sailors was open and notorious, and no one cared.  They did their jobs and stood their watches; nothing else mattered.  It was the same on shore.  

Another personal experience was with a particular couple.  Before my wife Tara and I were married, we were acquainted with another unmarried couple.  They were middle aged; one had chronic health issues.  They had been together for many years and took good care of each other.  It was obvious in everything they did that they were devoted to each other; that they were in love.  They were also good friends to us.

Any successful relationship between two people living out their love to each other is a good example to all.  It didn’t matter that our friends were unmarried, and it didn’t matter that they were two men.  We were unmarried by choice, still sorting through the implications of marriage.  Our friends were unmarried too, but not by choice.  Their commitment to each other was certain.  Day by day they lived out the vows they weren’t permitted to give legally—“for better or for worse, till death do us part.”  In this they did far better than many ‘traditional’ couples.  If they were guilty of a sin, it was by no means the worst: the sin of unregulated love.

Rather than harm our relationship, our friends’ good example, like those of our parents, gave us the confidence to make that lasting commitment to each other too.  Tara and I did marry—almost 22 years ago.  In our marriage, money, career, children, illness, Law School, these have challenged us.  Whom our neighbors married—or even if they were married—has never been a concern. 

So, after some 30 years of acquaintance with persons I knew to be gay or lesbian, my conclusion is “what IS the big deal?”  I try to understand the arguments for prohibiting same-sex marriages, but to me, they just don’t hold water. 

·         Marriage is for procreation.  Once maybe, but not for a long time.  Since before the Constitution, marriages between people who cannot or will not have children were considered just as legitimate as those resulting in a pack of children.  (I grew up in one of those packs.)

·         Marriage is the cornerstone of society, culture, civilization.  No argument there, but that does not preclude same-sex marriages from contributing to the stability of our culture.

·         Marriage is traditionally between a man and a woman only.  Well, not really.  But, setting polygamy aside, is it legitimate to deny personal liberties on the basis of tradition alone?  Adherence to tradition is voluntary, but the imposition of tradition is oppressive.  

·         Same-sex marriage threatens family values.   Which values are those?  Marital fidelity?  Nope.  Raising your children to be good persons?  Nope.  Keeping your family healthy and safe?  Nope.  Which one did I miss?

·         A majority of Americans oppose same-sex marriage.  I suppose so.  I know a majority opposed racial equality too.  And inter-racial marriage.  At one time a majority opposed abolitionism and enfranchising women and Catholic Presidents.  Fortunately our framers understood that individual rights (such as equal protection) are not subject to the fickle will of the majority.

·         The Framers of our Constitution didn’t intend to legalize same-sex marriage.  Probably true.  They also probably didn’t intend to legalize semi-automatic fire-arms, political action committees, NATO, law school blogs, Social Security, or Medicare. And they probably didn’t realize that sexual orientation, left-handedness, and many other character attributes are not choices, but characteristics imposed on people by both nature and nurture.  In any event, why do we suppose that the Framers intended our evaluation of this problem be cabined by their evaluations?  Unlike many modern Americans, the Enlightenment generation who founded our Nation had a deep faith in progress and intellectual development. They honored the traditions that served them well, and spurned the rest.  If they thought picking and choosing acceptable, why can’t we?

So, needless to say, I was gladdened to see that the Supreme Court of Iowa unanimously ruled on Friday that a statute prohibiting same-sex marriage violates the Iowa Constitution.

Critics have not been quiet, of course.  “While I respect an individual’s right to live his or her life as they see fit, decisions like this are better left in the hands of legislators and governors.”   (RNC Chairman Michael Steele)  Government should not tell you how to run your business, but it should be able to tell you who you should marry?  Why?

Rep. Steve King (R-IA)  condemned the decision, saying Iowa may become a “gay marriage Mecca.” In this depressed economy, when Iowans see the kind of money that people spend on marriages, they may start advertizing their new marital opportunities.

“It’s, quite frankly, a disaster.”  (Brian English, spokesman for the Iowa Family Policy Center).  This is an odd disaster: no one injured, no property damage, no harm of any kind.   This is the kind of disaster we need more of.

I am sure there are other rationales for prohibiting same-sex marriage, but they all seem to be different versions of arguments from tradition, or from religious practices, or from personal philosophies about law or culture.  Some may appear persuasive—until you think of the good people who are relegated to second-class citizenship because of tradition, state-sanctioned religious views, or personal philosophies.  The bottom line is that if my neighbors were two married men, it would not affect my marriage at all.  If they had a dog that barked a lot, that would matter much, much more.

The movie starred Gregory Peck as attorney Atticus Finch who represented an African American man, Tom Robinson, who was wrongfully accused of raping a White woman in a southern Mississippi town.  The evidence clearly established that Robinson had not committed any crime against the alleged victim.  Rather, the facts indicated that the alleged victim’s father had physically assaulted her after witnessing her kissing Robinson.  Notwithstanding the evidence, the all-White jury convicted Robinson.  Hence, Professor Blinka was correct that Finch lost the case.  However, the movie would have less emblematic of the times if the jury had acquitted Robinson.  Five very high-profile real life murders during this era reflected the impossibility of Finch’s task.  An all-White jury exonerated the suspects of the 1955 murder of Emmett Till in about one hour even though the evidence established their likely involvement in the murder.  Medgar Evers, a civil rights pioneer, was killed in Mississippi during 1963.  The evidence pointed to the guilt of the primary suspect; however, two all-White juries deadlocked on his guilt.  The suspect was finally convicted during 1994.  The civil rights workers James Chaney, Andrew Goodman and Michael Schwerner were brutally murdered in 1964.  No one was charged with these murders until 2005 even though suspects had been implicated shortly after the deaths. 

I was born and raised in an integrated community in upstate New York after these killings.  The movie To Kill a Mockingbird was my first exposure to the tumultuous civil rights period.  I watched the movie for the first time as a child with my parents. The movie had an immediate impact on me.  I experienced a range of emotions – anger, shock, confusion and sadness. The sadness, anger and shock resulted from the conviction and subsequent death of Robinson.  The confusion resulted from the death of the movie’s villain, the alleged victim’s father, at the hands of a meek neighbor, and the sheriff’s decision to cover up the murder.  Irrespective of the flaws in the court system, the sheriff was obligated to arrest the neighbor.  However, I was also inspired after watching the movie.  Finch made a great personal sacrifice to represent Robinson, including placing his children in harm’s way.  This fictitious character inspired me to become an attorney, to help the disadvantaged and to be willing to make personal sacrifices for a cause.  Consequently, while To Kill a Mockingbird was clearly a fictional tale, I will, indeed, watch it for the 51^st time when I crave inspiration! 

I honestly do not much like movies or television shows about lawyers or legal practice.  It’s not that they are “unrealistic”; they are, after all, entertainment, not educational in purpose.  The lawyers are usually caricatures at one extreme or the other.  On the one side you have the unctuous Atticus Finch-type (I’d rather leave the planet than read or watch To Kill a Mockingbird — Finch loses the big case and gets his client killed; nice job!) and on the other you have the venal sleaze-ball.  I like subtlety.  Denzel Washington’s character in Philadelphia, for example, is affecting because he portrays a lawyer fighting his own demons while battling for his client.

And this brings me to John Mortimer, himself an accomplished barrister, a champion of free speech, and a gifted writer who died last week in Great Britain. 

Mortimer’s alter ego was the quintessential Old Bailey hack Horace Rumpole.  (The Old Bailey is London’s criminal court.)  Over the decades Mortimer wrote scores of Rumpole stories that appeared in print and on television.  I’ll confess that I have not watched a Rumpole episode since the 1980s, but as a young lawyer learning how to try cases I was drawn to the character.  I certainly did not want to emulate Rumpole — an obnoxious fat old guy who drank way too much and ignored his family.  (On my worst days, even I don’t aim that low.)  Rather, Mortimer’s Rumpole had a passion for lawyering along with a grudging affection for his clients, mostly petty criminals, despite their shortcomings.  He relished examining witnesses and trading salvos with opposing counsel and the bench.  Most of all, Rumpole appreciated that trying cases was at once both an art form and an intellectual exercise, and the trial itself a key feature of the rule of law. Rumpole did not judge his clients; rather, he understood that under the rule of law his client was guilty only if the prosecution met its burden of proof.  And in Horace Rumpole the audience saw a lawyer who would rather be trying a case, win or lose, than doing just about anything else in the world.  When this happens you have found your niche in the profession, whatever it may be.

The “film” that I would like to highlight is actually an episode of a long-forgotten television series from the 1960’s.  Laredo, which aired on NBC from 1965 to 1967, was a western that focused on the adventures of a group of Texas Rangers based in the south Texas town of Laredo.  Laredo was written as a serious western, but one that clearly had a sense of humor about its subject.

The final episode of the series, entitled “Split the Difference,” was structured around the probate of the will of a notorious outlaw named Jake Ringo.  The episode (which was not filmed with the idea that it would be the final episode; it just turned out that way) focuses on the phenomenon of the dead using will provisions to control the lives of the living.  In that sense, “Split the Difference” follows squarely in the tradition of Ambrose Bierce’s “The Famous Gilson Bequest,” which may well have inspired the episode.  It also plays around with one of the cardinal principles of westerns — that once the bad guys make it across the border the good guy law enforcement officers have to stop chasing them.

I remember watching the episode live on April 7, 1967, but my memory has been greatly refreshed by what I found on the Internet.

Following the death of Jake Ringo letters are sent to seven individuals by lawyer E. J. Morse informing them that they have been named as beneficiaries under Ringo’s will and are entitled to share in Ringo’s estate which consists of $75,000 in cash.  The reading of the will is to be conducted shortly in the Halfway Mansion in the town of Mexas, located on the Texas-Mexico border.  Not only in Mexas exactly on the border but the mansion straddles the border line so that part of the structure is in Texas and part in Mexico.  A white floor stripe, marked Texas on one side and Mexico on the other, actually runs throughout the house advising occupants of the country in which they are standing at any given moment.  (Given the Rio Grande River, this seems impossible, but few 1960’s television shows were sticklers for such details.)

Recipients of the letter included the judge who convicted Ringo and sentenced him to death, the hangman who presided over his execution, a renegade Indian woman named Linda Little Trees, three notorious outlaws: Gypsy John Fuentes, Belle Bronson, and Smiley Hogg, and Texas Ranger Captain Richard Parmalee, the leader of the Rangers in Laredo and the moral center of the show.  Parmalee was also the man that apprehended Ringo and made possible his conviction and execution.  (Parmalee was played by actor Philip Carey who went on to a long career (1979-2007) as the Texas patriarch Asa Buchanan on the ABC soap opera One Life to Live.)

Over the objections of several of his fellow Rangers, Parmalee decides to go to Mexas so that he can recover the entire $75,000 which he is certain is stolen and which can be returned it to the banks from which it was taken.  Moreover, two of the letter recipients, Little Trees and Hogg, are wanted for murder in Texas, and this would provide him with an opportunity to capture them and bring them back for trial.  For back-up Parmalee agrees to take two of the Rangers with him.

Unfortunately, the judge and the hangman are not able to attend the reading of the will, having been murdered by Little Trees and her henchman, Blue Dog, in the episode’s opening scene.  However, the other four devisees and Parmalee all make their way to Mexas. 

When the Rangers arrive at the house, they find that the other participants have strategically placed themselves inside the Halfway Mansion.  Little Trees and Hogg, wanted for murder in Texas, stay in the portion of the building in Mexico, while Belle and Gypsy, both wanted for murder in Mexico, have taken up residence in the Texas part of the house.   (We also learned that the beautiful Belle Bronson and the Captain once had a thing for each other, but that he broke off the relationship because she wouldn’t give up her outlaw ways.)

Once the group is assembled, the lawyer Morse informs them that to qualify for their inheritance, each of the devisees must spend the night in the Halfway Mansion.   Those who are still alive the following morning are to split the $75,000 evenly.  It becomes apparent that Ringo’s will was drafted in such a way as to encourage his enemies on both sides of the law to kill each other off.

The Rangers retire to an upstairs bedroom for the evening, but loud noises bring them back downstairs where they find, distressingly for this viewer, that the lawyer Morse has been murdered.  When Smiley Hogg bursts into the room firing a gun that, unbeknownst to him, is loaded with blanks, he is gunned down by the Rangers, reducing the number of living devisees to four (and the number of lawyers to zero).

Suddenly, the gas lights go off, another shot is fired, and when the lights come back on Belle is lying on the floor, fatally wounded.  At this point, the momentarily grieving Parmalee (and presumably most of the western-loving 1967 audience) realizes that something is wrong with the picture.  Just as the Rangers figure out that Ringo is probably still alive, the outlaw appears in the room with a shotgun pointed at the survivors.  It also becomes apparent that the Indian miscreant Linda Little Trees is in cahoots with Ringo and that the two have planned this event to rid themselves of their enemies.  (The hangman and possibly the judge were presumably bribed to let Ringo go, only to be later murdered by their accomplices.)

Little Trees and Blue Dog escort the Rangers back upstairs at gunpoint while Ringo shoots Gypsy in the parlor on the first floor.  When the Rangers reach their room they find three nooses hanging from the ceiling, installed by Ringo so that they can experience the fate to which he had been sentenced. 

In yet another plot twist, it turns out that Ringo only pretended to shoot Gypsy and the two of them climb the stairs with the intention of double crossing Little Trees and killing both Indians and all three Rangers.  However, at the last minute Little Trees herself realizes that she is about to be betrayed by Ringo, so she turns around and shoots Gypsy before he can fire his gun.  She then grabs the $75,000 and takes off.  No longer held at gunpoint, the Rangers are able to subdue both Blue Dog and Ringo and later catch up with Little Trees.  Because they are able to capture her on the Texas side of the house, they can now arrest her for murder.

Little Trees, played by Will and Grace actress Shelly Morrison—she was the Salvadorian maid that married Jack so that she would not be deported–was returned to prison along with Blue Dog.  Ringo was presumably hanged.  The Rangers went back to Laredo for further adventures, only to find out that while they had evaded Ringo’s efforts to kill them they were soon to be done in by their network’s own programming ax.

Not great literature but a clever (by television standards at least) play on the way that western writers used jurisdictional and inheritance issues as plot devices.

First, Komie. I believe that I first read Komie’s stories because my colleague David Papke passed along a copy of one of his books to me. I really enjoyed the stories. I should explain that generally speaking, I am not much of a reader of contemporary fiction. Besides reading for work, I tend to read nonfiction and poetry. My fiction reading list is limited, most of the time, to science fiction novels and short stories, and a few of my favorite novels, which I read over and over.

But Komie’s work grabbed me. The stories were so much more human and interesting than the other popular law-related fiction I had read. Komie’s writing is spare but vibrant. He writes about the worlds he knows well, the worlds that Chicago lawyers inhabit, but he uses that particular world as a lens for viewing human nature and human experience. Probably many of Komie’s stories resonate with me because some of his best work centers on young lawyers entering, trying to enter, or working at, large law firms. As one reviewer stated, “[the Komie stories that focus on large law firm life] are exquisite in their attentiveness to detail and full of an engaging, melancholy wisdom.”

Professor James Elkins, editor of the Legal Studies Forum, has been a fan of Komie, and the essay I wrote about Komie’s work appeared in the LSF. Professor Elkins has published a number of the stories in the LSF, and made some of them available online, here. If you want to read just one, you might try Solo.

Speaking about Professor Elkins leads me to my second topic, poetry by lawyers. If you like poetry, you should be aware of Professor Elkins’ fantastically thorough website cataloging poetry by lawyers, Strangers to Us All. The world of lawyer poetry is so much more than just Wallace Stevens and Archibald Cox–which (in my view at least) is really saying something! In addition to maintaining that website, Professor Elkins has published a lot of poetry in the Legal Studies Forum over the past five years or so. If you scroll to the bottom of the “Strangers to Us All” page, you can see descriptions of the LSF issues that anthologize poetry, as well as links to some of the poetry from those volumes, made available online.

Occasionally I run across poems by lawyers elsewhere. For instance, a couple of years ago one of my sisters gave me a volume of the Grove Review for my birthday, and it contained this lovely poem by lawyer David Filer, titled “Sometimes at Sundown.”

 

The question of the month asks for a favorite movie or a novel about law practice. Claiming the right established by Professor Murray to tweak the question, I want to mention a movie from the 1960’s and a biography published in 2008.

The movie is A Man for All Seasons. It is based on the play by Robert Bolt. The movie won several academy awards, including best picture. It focuses on a critical point in the life of Sir Thomas More.

The book is Crossing Hitler, by Benjamin Carter Hett. It is published by Oxford University Press. The book’s subject is Hans Litten. Less well known than Thomas More, Litten practiced law in Germany during the last years of the Weimer Republic. 

Thomas More was a pillar of the 16^th Century English society in which he lived. Hans Litten was an anti-establishment figure in pre-World War II Germany. Both are complex men, and both risked becoming heroes at least in part by being lawyers in societies undergoing transformational change.

More’s England is in the throes of theological and social upheaval influenced by a technological revolution brought about by the printing press. More must decide whether to support a king and government who in the name of reform seek to overthrow the old order, and who suppress or ignore rights grounded in the common law or the Magna Carta. More’s decision costs him his standing in society, his property, and eventually his life.

Litton’s Germany is attempting to create a democracy amid the ruins of a society prostrated by war and a punitive peace. Litten uses Germany’s legal procedures to expose what he believes are the excesses of the Weimer government, and the fallacy of the Nazi party’s attempt to portray itself as a peaceful, democratic party. He subpoenaes and cross-examines Adolf Hitler concerning the Nazi Party’s activities at a critical point in the party’s rise to power in Germany. This and other actions cost Litten his practice, his freedom, and eventually his life.

Recent technological and communications revolutions are reshaping our institutions. Today’s lawyers practice law in the midst of this transformation.  The stories of Thomas More and Hans Litten show us that we are not the first lawyers to practice law in such times. Whether we want to or not, lawyers have a role to play in the reshaping of institutions during times of change. In extreme cases, that role may require that lawyers risk becoming heroes.

Vole claims his defense is based on the fact that his wife, Christine (Marlene Dietrich), will testify that he arrived home the evening of the murder long before it occurred.  Robarts, of course, counsels Vole that the testimony of a wife in such a situation will be suspect.  Robarts’ first meeting with Christine leaves him concerned with her demeanor and sincerity.

The trial of the case in the Old Bailey, with all of its pomp and circumstance, is the highlight of the film.  The prosecution first presents its circumstantial case and the interchanges between Robarts and the prosecuting counsel are noteworthy.  In one instance he objections to a line of the prosecution’s evidence by stating that if his learned colleague is going to both ask and answer the same question, the presence of the witness “is superfluous.”

To the shock of Robarts and the viewing audience, the prosecution’s last witness is Christine Vole.  Robarts immediately objects, but Christine then testifies that her marriage to Vole was a sham, since she was already married when she met Vole and her first husband is still alive.  Her testimony against Vole is damning, including her claim that he arrived home on the night of the murder with blood on his clothing and told her that he had killed Mrs. French.  Robarts’ cross examination centers on having Christine admit that she told a number of lies before appearing in court that day and concludes with his statement that he is surprised “the testament did not leap from your hands” when she took the oath.

The movie’s conclusion is riveting.  Robarts is contacted by a woman (Christine in disguise) who, in exchange for a small sum of money, provides him with letters written by Christine to her “lover” Max.  They point to a compelling motive for her to lie under oath.  He has her called to the stand again and confronts her with the letters.  Her only response is: “Damn you!  Damn you!  Damn you!”  Vole is acquitted and following the ensuing pandemonium Robarts is left in the courtroom with Christine.  She tells him that her letters were a fraud.  There was no Max.  Her husband told her he committed the murder and she believed that her being discredited as a witness for the prosecution was the only thing that could save Vole from conviction.  Vole reappears and willingly, due to double jeopardy protection, confirms what his wife said.  An attractive young woman then appears and she and Vole embrace.  He admits that the two of them are going away together.  Christine then grabs a knife from the counsel table and kills him.  As Christine is led away by the authorities, Robarts makes it clear that his next effort will be her defense because she did not murder Vole, she “executed him.”

A Lesson Before Dying taught me that lawyers have to be advocates for their clients’ humanity.  A Lesson Before Dying recounts the trial of a young black man named Jefferson, found guilty of two murders.  In his closing summary, Jefferson’s lawyer compares Jefferson to a “thing,” concluding, with this sentence, “[w]hat justice would there be to take this life?  Justice, gentlemen?  I would just as a soon put a hog in the electric chair as this.”  It cannot be said that the lawyer does a “bad” job here since in a deeply segregated South, this tactical argument may have been the only way to preserve his client’s life.  Of course, such advocacy denies all humanity to Jefferson (which is Gaines’ concern as a novelist for the rest of the book).  A Lesson Before Dying offered me, then, a rich account of a debate often heard in Professional Ethics: do we owe our clients more than the “best” advocacy?  Do we have additional responsibility to advocate in a humane way?   One of the great pleasures of working at Marquette, from my perspective, is seeing the work of Janine Geske and Andrea Schneider, who through their respective programs, attempt to answer these questions.

Nelson Mandela’s autobiography, A Long Walk to Freedom, outlines the way in which lawyers and law school impacted Mandela’s development as a social activist.   Mandela’s relationship to the law was a complex one: laws maintained the boundaries of social classifications within an apartheid system, while at the same time provided a means for provoking changes in that system.  Mandela’s autobiography offers a window into a perspective of a whole set of lawyer-activists, such as Thurgood Marshall, Mahatma Gandhi, Charles Hamilton Houston, and Constance Baker Motley, who understood the law’s possibilities even when its application was unjust.  Such a vision of the law is a humane one, given its optimistic view of institutions’ capacity for change.

The Wire, with its perspective on the continual failures of legal institutions (the police, the courts, and the politicians) to address the drug trade, tempers the preceding optimism with a necessary dose of skepticism.  Well-meaning attempts to change the social dynamics of the drug trade fail again and again in The Wire.  The only saving grace in The Wire is the great humanity of individuals in the system.  Although he is depicted as a sociopath throughout The Wire,  every time I hear Marlo Stansfield’s “My Name is My Name” speech, I recall his humanity (although, unlike Jefferson’s humanity, an ugly one).  

One more thing: I have found that these works are in a continual dialogue with each other.  Read them together and you are subject to this rich discussion of the ways in which change can be accomplished within the legal system, the ways in which change is thwarted within the legal system, and the way each of us in our particular humanity can be engaged by the legal system.

Both actors deliver deeply engaging performances, as do several other top-flight character actors in supporting roles.  (James Gandolfini is especially good as a blue-collar employee of one of the defendants who must decide whether or not to cooperate with the plaintiffs’ lawyer; he doesn’t have many lines, but he exudes this barely subdued rage, looking as if he would like nothing more than to punch somebody out, if only he could decide at whom he should really be angry.) 

But, in addition to great acting and a compelling story, there are lots of other reasons this movie really works for me. 

For one thing, environmental litigation is what I myself was doing as a lawyer in 1997 (when the movie came out), and who can resist a glamorized, Hollywood version of one’s own life?  (Perhaps this also helps to account for the enduring fascination with The Paper Chase among law students and law professors.)  Yet, though glamorized in some respects, the depiction of complex environmental litigation in A Civil Action is accurate enough that I consistently found it to be a good way to begin a discussion with students about important problems in the American civil litigation system (e.g., lawyer-client conflicts of interest, plaintiff-defendant resource imbalances, and excessive cost). 

Ultimately, though, what I like most about the movie is its dramatization of the profound gap between what the lawyers and court system are willing and able to provide and what the victims of great human tragedy most desperately want.  At first, we see the Woburn victims — families who lost children to cancer — only through Travolta’s eyes.  The negative stereotype is that plaintiffs’ lawyers see victims only as a meal ticket.  For the Travolta character, though, I think he sees his clients less from the standpoint of a financial payoff, and more as a way to get the ego-gratification that comes from playing David to a corporate Goliath. 

In any event, the plaintiffs’ lawyer seems to have no empathy for the terrible grief of his clients; indeed, he expressly disclaims any such emotional response by a lawyer as counterproductive to the clients’ legal interests — which he equates with maximizing financial gain.  Gradually, we, the audience, come to see that the clients are less interested in money than in an explanation of why they lost their loved ones, an apology for wrongdoing, and generally having their basic human digintity recognized by the big corporate and legal actors in the case.  The Travolta character finally seems to get some sense of this by the end of the movie — although there is enough emotional subtlety in the production that we do not get an overly obvious epiphany.  Still, I think the movie works as a healthy reminder for lawyers and law students of the human needs for healing and respectful treatment that lie behind much litigation, and that cannot be met through dollars and cents alone.

The phenomenon intrigues me.  I don’t think it compares to the practice dating back to the earliest decades of the Republic of gathering to watch major trials.  After all, the great majority of proceedings in today’s courthouses are not trials, and the court tourists watch whatever they can find, regardless of how trivial it might be.  Perhaps court tourism was prompted by the extensive media coverage of the O.J. Simpson and Michael Jackson trials.  Alternatively, court tourism might be inspired by the ubiquitous pseudo-court shows such as “Judge Judy” and “Judge Joe Brown,” to name only two.   Whatever the inspiration, today’s court tourists want to be entertained.  A trip to the courthouse is cheap recreational activity.

We must surely have become a postmodern society when legal proceedings no longer seem the path to justice, but rather serve as a source of escapist titillation.

Some highlights:

THE office joker. The mother hen. The king. The rebel. The gossip. The peacekeeper. The dude.

Anyone who has ever been part of a workplace culture can probably recognize at least one of those characters in the cubicle next door.

But workplace roles and the dynamics among colleagues can go much deeper than those somewhat superficial stereotypes, especially in a nation where many people spend as much time with colleagues as they do with their families, where the office so often mirrors the family.

A boss is not just a boss, in the view of some psychologists who study workplace roles; he can be a stand-in for a disapproving and distant father. An unpredictable, easily angered manager can be a thinly veiled rejecting mother. Colleagues competing for the boss’s attention — or merit raises and bonuses — are siblings in rivalry . . . .

Given all the stress and uncertainty driven by the economic crisis, some companies, with the help of business and organizational psychologists, are plumbing the depths of these feelings and roles, trying to gauge their effects at a time when emotions are running high. A growing number of business psychologists and executive coaches are also looking at the influence of birth order and other family roles and niches on office behavior.

“Work is nothing more than an entirely complex set of relationships,” said Michael W. Norris, a clinical psychologist in Los Angeles, who runs monthly leadership coaching groups and individual sessions with senior executives. “You have partners that are your equals, subordinates, superiors,” Mr. Norris said. “It’s parents and siblings. All of these dynamics that are exactly the same in the workplace, just the titles are different.”

Interesting thesis and god knows that I know plenty of the aforementioned characters in my various workplaces over the years (and lord knows I don’t qualify as any of them!).  I’d be interested in knowing in the comments whether blog readers think there is a nice symmetrical relationship between work and family roles as the article suggests.

I, for one, am far nicer at work . . . .

Cross posted at Workplace Prof Blog.

In 1952 Terkel began working for WFMT, first with the “Studs Terkel Almanac” and the “Studs Terkel Show,” primarily to play music. The interviewing came along by accident. This later became the award-winning, “The Studs Terkel Program.” His first book, Giants of Jazz, was published in 1956. Ten years later his first book of oral history interviews, Division Street : America, came out. It was followed by a succession of oral history books on the 1930s Depression, World War Two, race relations, working, the American dream, and aging. His latest book, Will the Circle Be Unbroken : Reflections on Death, Rebirth, and Hunger for a Faith, was published in 2001. Terkel continues to interview people, work on his books, and make public appearances. He is Distinguished Scholar-in-Residence at the Chicago Historical Society.

Mary observes this from the Chicago Tribune:

“At his bedside was a copy of his latest book, ‘P.S. Further Thoughts From a Lifetime of Listening,’ scheduled for a November release.”

From a labor perspective, Turkel made many important contributions in putting together oral histories of the life of workers, including Working: People Talk About What They Do All Day and How They Feel About What They Do and Hard Times: An Oral History of the Great Depression.

Thanks to Mary for pointing out that recordings from Terkel’s radio programs and oral history interviews are here.

Hat Tip: Patrick O’Donnell

Cross posted at Workplace Prof Blog.

My students resisted this interpretation and proffered two other readings.  Some thought The Paper Chase should be recognized as a largely accurate portrayal of the realities of legal education.  One student shared with the class her experience of standing on her feet for 40 minutes while a Socratic professor ripped her ego and confidence to shreds.  Other students interpreted The Paper Chase as a positive portrayal of legal education, as a suggestion that law school could and should toughen students and separate those who “had it” from the mere posers.  One student said she regretted her legal education was not more like the one portrayed in The Paper Chase.

Overall, there is not a “correct” interpretation for the film.  Film is one variety of cultural text, and the meaning of a given film depends on the interaction of the text and individual viewers.  Different viewers can legitimately find different meanings in the same text, and, indeed, the same viewer might find different meanings in the same text at different stages of his or her life.   That having been said, I’m encouraged that all of those who commented on The Paper Chase were prepared to discuss what actual legal education is or could be.  Legal education is richer and more meaningful if we not only participate in it but also critically appraise it.

Everyone doesn’t agree. Via the indispensable Religion Clause Blog, we learn that authorities in the Basammy region of Russia want to ban the show, citing an episode called “Mr. Hanky’s Christmas Classics,” which contains some faux Christmas carols (on which I will not elaborate) that certainly might offend certain religious sensibilities (although it is hardly the most offensive bit of the South Park library). The effort apparently rests upon a 2006 law that prohibits “the abasement of national dignity” and “inciting religious and national hatred.”

I suspect, based on past history, that this will result in a new episode of the cartoon that will strive mightily to “abase the dignity” of at least these Russian prosecutors, but there are a host of problems associated with the application of foreign standards regarding “hate speech” or “defamation” originating in the United States.

One troubling development is the advent of “libel tourism,” in which plaintiffs alleging defamation seek a favorable forum (generally one in which principles protecting speech from plaintiff-friendly defamation laws are not followed), often based on a small number of sales of the allegedly defamatory material or even its dissemination over the Internet. The case of Rachel Ehrenfeld, described here, illustrates the problem.

The problem goes beyond whether such judgments can be enforced in the United States. Publishers with global interests may not be able to rely on whatever protections are offered by U.S. law.