The Summer 2019 issue of Marquette Lawyer features three pairs of stories with an underlying common theme that can be summed up by one of the headlines: “In Search of Better Outcomes.” This issue of the Marquette Law School semiannual magazine overall has a substantial historical orientation, but it also speaks strongly to current realities and issues—as has become even clearer since the magazine hit the streets a few weeks ago. Simply put, learning about the past helps in understanding the present and considering the future. This post takes up one pair of articles: the cover story and a reaction to it.
The cover story, “Dying Constitutionalism and the Fourteenth Amendment,” is an edited version of the Robert F. Boden Lecture given at Marquette Law School in fall 2018, by Ernest A. Young, the Alston & Bird Professor at Duke Law School. While the Fourteenth Amendment later would be crucial to the growth of constitutional protections and the extension of civil rights—the linchpin of America’s “second founding,” as it is sometimes called—Young focuses on the first 75 years after the amendment was ratified in 1868. It was a period of broad suppression of civil rights, particularly those of African Americans—the Fourteenth Amendment not working much to the contrary.
Young’s purpose is not so much historical as jurisprudential: He presents his essay as a cautionary tale about “living constitutionalism,” demonstrating that, while that mode of constitutional interpretation was not the Court’s stated approach in those 75 years, it could have been: For “every one of [living constitutionalism’s] modalities strongly supported the compromise or even abandonment of the amendment’s core purpose of freedom and equality for black Americans.” Simply stated, the history of the use of the amendment is a reminder that “social progress is not inevitable, that social forces can push constitutional meaning in bad as well as good directions, that living can turn into dying constitutionalism if we are not very, very careful,” Young writes.
In a comment on Young’s lecture, David A. Strauss, Gerald Ratner Distinguished Service Professor of Law at the University of Chicago and author of The Living Constitution (Oxford 2012), says that the early failures under the Fourteenth Amendment need to be reckoned with by those who are proponents of living constitutionalism. He writes that Young’s lecture shows that “in the end, there is only so much that the law can do to save a society from its own moral failings.”
Ideological rhetoric not only lionizes heroes but also deplores villains. It tells us what we should like and what we should hate. Neoliberal ideologues, in this regard, typically praise deregulation, privatization, and the market economy while condemning the “nanny state” as especially villainous. If we reflect critically on the nanny-state rhetoric, we might be able to limit the persuasiveness of one of neoliberalism’s most-favored notions and in the process recognize who is most powerful in our society.
For starters, casting anything related to a nanny in a negative light is curious. Popular culture, after all, includes an abundance of perky, resourceful, and indomitable nannies, all of whom are devoted to the well-being of those under their care. Thoughts of Mary Poppins, Fraulein Maria in “The Sound of Music,” and Nanny McPhee win a warm spot in just about everybody’s hearts. I always enjoyed the resourcefulness of Fran Fine, who was played by the feisty Fran Drescher in the popular 1990s sitcom “The Nanny,” while my favorite boyhood nanny was the large anthropomorphic dog Nana in the Peter Pan stories. She wore a charming bonnet, built castles out of toy blocks, and lovingly made the beds for the Darling children.
Some are calling for a stronger connection between Christianity and Christmas, concomitantly rejecting the term “Xmas” as blasphemous, deploring the substitution of “Happy Holidays” for “Merry Christmas,” and urging generally that we “put Christ back in Christmas.” Sincere religious beliefs prompt most of this campaign, but to what extent has Jesus Christ ever been the true heart of Christmas?
The Bible does not give the date of Jesus Christ’s birth, and it was not until the fourth century that the Catholic Church recognized December 25th as Jesus Christ’s birthday. Historians have suggested the day was selected to coincide with pagan winter solstice celebrations that were held in many locations throughout Europe. The solstice came at roughly the same time large numbers of cattle were slaughtered so they would not have to be fed during subsequent months. Meat was as a result plentiful, as was the wine and beer that had been started during the preceding spring and summer and had now fermented.
Some find the superficiality and commercialism of pop music troubling enough to justify ignoring the whole thing. However, if a music fan approaches pop music with some variety of critical consciousness, the pop music fan can use it to consider everything from personal values to national identity. If recent developments in the Korean Peninsula are any indication, pop music, a type of pop culture, can even play a role in improving international relations.
North Korea has traditionally been leery of South Korean and especially American pop culture. For years, the North Korean government attempted to suppress DVDs and thumb drives with pop cultural television shows, movies, and popular music. Often smuggled into North Korea from China, these pop cultural works struck the government as evidence of bourgeois decadence. Mere possession of South Korean or American pop culture was a criminal offense and could lead to a sentence in prison camp. Continue reading “Pop Music and International Relations”
This past weekend, I attended the annual Milwaukee Mighty Con, a local comic convention. While there, I watched one of the cosplay competitions where competitors dressed in fantastical recreations of iconic characters such as Star Wars’ Kylo Ren. Yet while observing the competition and enjoying the efforts of the competitors, I pondered the legal implications of these derivative works.
But first, a little background information is in order. The term “cosplay” was created by Takahashi Nobuyuki in 1984. Nobuyuki attended a science fiction convention in Los Angeles, and he was so impressed with the fans’ costume competition that he wrote about his experiences upon returning to Japan. Yet, no word in the Japanese language accurately represented the costume competition Nobuyuki saw. To remedy this predicament, Nobuyuki combined the Japanese equivalents of “costume” and “play” to describe what he saw. This created the word “kosupure,” which in English roughly translates into cosplay. Today, this term universally refers to a fan’s wearing of costumes, props, and accessories to represent a character often originating from video games, comics, movies, and TV shows. By extension, the individual who imitates the character is known as a cosplayer. Now, some cosplayers, like the competitors at Milwaukee Mighty Con, can have a monetary benefit from winning cosplay competitions. Such monetary gains naturally bring up concerns regarding the copyrights and trademarks on the imitated characters.
Bill Cosby has made two distinctly different splashes in American popular culture. He starred in “The Cosby Show” (1984-92), a sitcom that was America’s most highly rated television show for five consecutive years. Then, his trial for sexual assault in the spring of 2017 became the most recent “trial of the century.” Ironically, the immense success of the former prevented the latter from attracting the attention many had predicted.
As for “The Cosby Show,” it featured the Huxtables, a fictional upper middle-class African American family living in a brownstone in Brooklyn Heights. Cliff Huxtable, played by Cosby, was a jolly obstetrician, while his wife Clair Huxtable was a successful attorney. The Huxtables has four daughters and one son, and although each episode had its tender tensions, they always dissipated by the end of the hour. “The Cosby Show” was about a happy, loving ideal family, and Cliff Huxtable became the nation’s fantasy father. When TV Guide ranked the 50 greatest dads in television history, the magazine named Cliff Huxtable “The All-Time Greatest Dad.”
While the show rarely addressed race directly, it was what the show left unsaid that was important. Cosby and the show’s producers consciously set out to “recode blackness.” They turned stereotypes upside-down by presenting a tightly-knit African American family that was affluent, had friends and neighbors of different races, and was headed by a married couple, with each member belonging to a learned profession. In the midst of the Reagan-Bush years, Americans took to the portrayal, and it, if only for a moment, obfuscated the nation’s shoddy racist inequality.
When twenty-five years later in time two dozen women claimed Cosby had drugged, sexually assaulted, and raped them, America was shocked. When Cosby went on trial in the spring of 2017 for sexually assaulting Andrea Constand, many thought the public would be obsessed with the proceedings. Coverage of the trial seemed likely to equal that for celebrities such as O.J. Simpson in 1994 and Michael Jackson in 2005. Trials of the rich and famous, after all, have been pop cultural delights since the days of the penny dailies in the early nineteenth century. Continue reading “Bill Cosby and American Popular Culture”
It is my impression that a good rock ‘n roll band can help a lot in law school. If listened to at the “appropriate” volume, the band can reduce the stress of the first year and relieve the tedium of the second and third years.
My band during law school was the Allman Brothers Band. It released an extraordinary string of vinyl albums in the early 1970s, with “Eat a Peach” (1972) being my personal favorite. My friends and I didn’t think of the Allman Brothers as progenitors of southern rock but rather as countercultural southern musicians able to blend the blues, jazz, and even a little country. The Band compared in our minds to Cream, Jimi Hendrix, and, of course, the Grateful Dead. And who knew that an aspiring Georgia politician named Jimmy Carter was also a fan of the Band’s incredible improvisational jams?
The Allman Brothers song that I played the most was “Whipping Post.” Gregg Album wrote the song and also sang the lead vocal. Its studio version appears on the Band’s debut album, but even better is the live version on “At the Fillmore East” (1971). I realized from the start that the song was about lost love, but I chose to think of it in relation to my existential condition: “Tied to the whipping post. Good Lord, I think I’m dying . . . .”
During the 1970s, the Allman Brothers Band lost two of its original members in separate motorcycle accidents. (The Band members loved Harleys.) Afterwards, Gregg Allman struggled to hold the Band together, but alcohol and drugs were mean nemeses. He also had six marriages, including an ill-fated and much-ridiculed union with Cher. But still, he continued to make music and to tour. Elise Papke and I caught his tremendous performance at the Northern Lights Theater in the Potowatomi Casino from second-row seats in 2015, and yes, “Whipping Post” was on his play list.
It was with great sadness that I read of Gregg Allman’s death due to liver cancer on May 27, 2017. R.I.P. old friend, and thanks for your help along the way.
It was announced Monday evening on the Jimmy Kimmel Live television program that Texas attorney Rachel Lindsay will be the next “Bachelorette” on the ABC series of that same name. Ms. Lindsay is a 2011 graduate of the Marquette University Law School. She has been a practicing litigator at the Dallas Office of the Law Firm Cooper & Scully. She was previously a contestant on this season’s ABC reality show “The Bachelor.” Ms. Lindsay’s selection is notable because she is the first African American to be cast as the lead of the popular reality series. We at the Law School wish Ms. Lindsay all of the best, both professionally and romantically.
Okay, I admit it. I’m playing Pokémon Go. It’s frustratingly addictive.
For those who don’t know, Pokémon Go is an app for smartphones; the app is free, but players can make in-app purchases. The idea is for each player to “catch” creatures known as Pokémon, which the player does by “throwing” what is called a Pokéball at them. Once you catch the creatures, each of which has its own special powers and abilities, you can “evolve” them into stronger, more powerful creatures and you can go to gyms to “battle” other players.
Pokémon Go uses GPS to figure out where a player is located and presents the player with that “map.” Pokéstops (where players can go to get free goodies they need to play the game) and gyms are represented on the map as actual places, usually public places like parks, sculptures, or churches. To get to a Pokéstop or to battle at a gym, a player needs to physically move herself to that location. For example, the Marquette University campus is full of Pokéstops—e.g., a few sculptures on the southeast side of campus, one of the signs for the Alumni Memorial Union. Dedicated players certainly get some exercise.
Pokémon Go is also interesting because of how it mixes your real-life location with the mythical creatures. When a creature appears, you can take its picture, as if the Pokémon is right there in your real world. (See the pictures in this post.)
But Pokémon Go has been at the root of a number of accidents and incidents and it raises a number of interesting legal issues.
American letters lost one of its legendary figures when Harper Lee died at 89 on February 19. Lee’s beloved To Kill a Mockingbird won the Pulitzer Prize for fiction in 1961, and it was the most popular of all twentieth-century novels by American authors.
Lee’s work also ranks at the top in the more specialized world of law-related popular culture. Atticus Finch, the novel’s protagonist, inspired many to become lawyers and to work for equality for African Americans. Gregory Peck won the Oscar for Best Actor in 1963 for his portrayal of Atticus Finch in the film version of the novel, and the respected American Film Institute has ranked Peck’s Atticus Finch as the greatest hero in the history of the cinema. Heroism is hard to rank, but Atticus Finch is surely popular culture’s most important lawyer.
As the winter break winds down, it’s definitely worth your time to start binge-watching Making a Murderer, a recent Netflix documentary on a real-life criminal case. A very close-to-home criminal case, at that.
The documentary, filmed over 10 years, follows Steven Avery, who was convicted in 1985 of sexual assault. He maintained his innocence and, indeed, 18 years later DNA evidence exonerated him. After he was released, he sued Manitowoc County for his wrongful conviction. It looks as though that lawsuit starts digging up some very unsavory conduct among officials in Manitowoc County.
But then—Avery is arrested for the murder of photographer Teresa Halbach. Several months later, his nephew Brendan Dassey is also arrested.
I’ll stop there with plot. If you’ve been around Wisconsin, you’ve probably heard of the case. If you’ve been on the Internet in the last couple of weeks, you’ve almost surely heard of it. But you must watch it.
Harper Lee’s Go Set a Watchman has an undeniably odd publication history. Ms. Lee wrote the novel in the 1950s, well before she wrote and published her beloved To Kill a Mockingbird. When she finally agreed to publish Go Set a Watchman in 2015, it registered on critics and readers as a sequel of sorts for To Kill a Mockingbird.
Go Set a Watchman involves the moving rebuilding of a parent-child relationship after the child has lost respect for the parent, and this account deserves contemplation and reflection. However, the novel as a whole is only mediocre. Furthermore, many readers will be shocked and disappointed by the novel’s suggestion that Atticus Finch is not the heroic man they thought he was.
In particular, Finch is hardly a staunch defender of civil rights for the people he calls “Negroes.” He tells his daughter Jean Louise, who was known as Scout as a young girl, “Negroes down here are still in their childhood as a people.” He also reveals he is taking the case of an African American defendant so that the case does not fall into the hands of NAACP lawyers. In Finch’s opinion, the latter are too eagerly seeking cases they can rush into the federal courts.
If Finch is not the champion of civil rights people took him to be in To Kill a Mockingbird, his attitude about the law has supposedly remained consistent. Uncle Jack Finch tells Jean Louise: “The law is what Atticus lives by. He’ll do his best to prevent somebody beating up somebody else, and then he’ll turn around and try to stop the Federal Government if it is breaking the law . . . . [B]ut remember this, he’ll always do it by the letter of the law. That’s the way he lives.” Continue reading “Atticus Finch Revisited”