Norman Rockwell and Storytelling

The Smithsonian American Art Museum in Washington, D.C., recently opened a new exhibit entitled “Telling Stories:  Norman Rockwell from the Collections of George Lucas and Steven Spielberg.”*  Rockwell’s art speaks to filmmakers Lucas and Spielberg for its ability to tell a story.  Rockwell’s storytelling can also speak to lawyers seeking to use narrative in persuasive brief writing.   

The exhibit begins with a series of photographs that Rockwell used when selecting props in Back to Civvies, a painting about a soldier returning home and trying on his old (and now too-small) civilian clothes in front of his dresser mirror.  The photos show how Rockwell arranged real-life props such as a bomber model and poster, college pennant, and uniform jacket with campaign ribbons to depict the pilot’s life before leaving for World War II and after coming home.    

Rockwell found details from his life, often things appeared from his work room or house in his paintings.  Rockwell painted his own sofa in Let Nothing You Dismay, and he painted a ship model in The Toy Maker that can be seen hanging on the wall of his studio in a photo taken almost forty years after the painting.   Those details convey precision, realism, and give his stories credibility.  We can relate to these details: they present us with cultural and historical associations, and they evoke our emotions.

Even his titles convey much. 

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Should the Teams of the NFL Be Treated as a Single Entity Under the Sherman Act?

Section 1 of the Sherman Act prohibits concerted actions unreasonably restraining trade, but exempts collective actions by separate business entities who share a complete unity of interest.  Whether § 1 applies to the major professional sports leagues has long been a matter of debate.  On the one hand, each team is separately owned and seeks to maximize its own profits.  On the other hand, each team has an important shared interest in maintaining a full league of competitive teams — who will pay to see the Yankees if they effortlessly crush all opponents?  So, does a league potentially violate § 1 when it blocks its members from entering into individual merchandising or broadcasting deals?

Matt Mitten reviews the history of litigation addressing this issue in a new paper on SSRN.  His analysis concludes with a discussion of the Supreme Court’s most recent pronouncement on the question, American Needle, Inc. v. National Football League, 130 S. Ct. 2201 (2010).  In American Needle, the Court held that the NFL’s grant of an exclusive trademark license to a headwear manufacturer was not immune from § 1 scrutiny.  The Court wrote, “Common interests in the NFL brand partially unite the economic interests of the parent firms, but the teams still have distinct, potentially competing interests.”  Although the question is a difficult one, Matt argues that Court reached the right result.  The paper is entitled “American Needle v. NFL: U.S. Professional Clubs are Separate Economic Threads When Jointly Marketing Intellectual Property.”

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Best of the Blogs

Con law, con law everywhere. Randy Barnett and Jack Balkin continued their debate over the constitutionality of the individual insurance mandate of the health care reform law. Barnett argued on Sunday that the Obama administration’s move to defend the mandate as a tax indicated its assessment that the Commerce Clause might not be sufficient, thus refuting those who dismissed the Commerce Clause challenge as frivolous. Balkin responded that it just shows government attorneys being good lawyers by piling on every argument they can think of, and that what’s really going on here is an attempt to turn back the clock on the cultural-legal shift that accompanied the New Deal. (See Josh Blackman for more on Balkin’s argument.) Barnett replies that if he’s making an “off-the-wall” argument, he’s got 21 state Attorney Generals with him, and that the truly unprecedented argument is “[t]he claim that Congress may require any person in the US to do anything it deems to be in the public interest or pay a fine or penalty to the IRS.”

That wasn’t the only New Deal flashback this week.

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