The Faculty Lounge

Commentary in the “Got To Give It Up” vs. “Blurred Lines” Copyright Case

I haven’t had much of a chance in this space to discuss one of my longest- and best-beloved areas of substantive law—copyright.  Last winter, I had the privilege to co-author (with Howard Abrams of Detroit Mercy) an amicus curiae brief on behalf of fourteen of the most accomplished musicologists in the country.  The brief was filed in support of Motown giant Marvin Gaye’s family (Gaye passed away in 1984) in the Ninth Circuit appeal of the celebrated case claiming that the 2013 hit “Blurred Lines,” written and performed by (among others) Robin Thicke and Pharrell Williams, infringed Gaye’s 1976 soul-funk classic “Got To Give It Up.”  The Gayes won several million dollars in unpaid royalties at trial.  Thicke and Pharrell were displeased.

Among the commentary that has been offered on the case was an op-ed in the San Francisco and Los Angeles Daily Journal raising the apocalyptic admonitions about the End of the World as We Know It that are often rolled out when someone is caught using somebody else’s work without paying for it.  You can find my response (originally entitled “Robin Thicke’s Rumors of the Death of Popular Music Are Greatly Exaggerated” but somewhat shortened by the headline editor), published earlier this week in the same papers, here.  Unfortunately both pieces are behind the Daily Journal’s paywall, but that’s what they insisted on.

The case was argued earlier this month.  Stay tuned for a decision whenever the Ninth Circuit is ready.

--Bernie

The Perfect Weekend

Sometimes we get lucky and everything lines up. This weekend was like that. I spent Friday and Saturday at my favorite I.P. conference sponsored by Franklin Pierce/UNH. Today, was a concert at Symphony Hall with Itzhak Perlman. What can you say but “aahh.”

Of Twerkers and Twerkees: An Open Letter to Robin Thicke’s Mother

[This post falls squarely in the “[pop] culture” portion of TFL’s “law, culture, and academia” mandate. Regular programming will resume in due course.]

Hi Gloria. Can I call you Gloria? I understand that you were displeased by the duet performed by your son and Miley Cyrus (as you know, your boy shows up at the 3:00 mark) at the MTV VMA awards Sunday evening.

Specifically, you said:

I was not expecting her to be putting her butt that close to my son. The problem is now I can never unsee it. . . . Him? Loved it! I love that suit, the black and white suit. I don’t understand what Miley Cyrus is trying to do. I just don’t understand. I think she’s misbegotten in this attempt of hers. And I think it was not beneficial.

Gloria, I’m confused about your confusion. I mean, look, the whole obscenity concern trolling thing isn’t my bag. VMA has been doing this for years, and if you wanted to see something else, well, that’s what they have C-SPAN for. But hey, you’re certainly free to know it when you see it. Obscenity, that is.

What I don’t get is why you see it in Cyrus but not in your own son.

To be fair, it’s not just you. All the commenters I’ve seen, from Sean Hannity (“outrageous,” “downright raunchy,” and “inappropriate” for a role model) and Bill O’Reilly (“she’s a troubled young lady” and “out of control”) to Camille Paglia (whose focus is on the philistine rather than the obscene nature of the routine) have reserved their criticism for Cyrus.

A mommy blogger’s open letter to her daughter, warning her not to follow in Cyrus’s footsteps, has gone semi-viral. But not a single Mommy blogger has warned her son against following in your son’s footsteps.

To no one's surprise, Bill O’Reilly blames Cyrus’s twerking on “bad parenting,” and after Miley’s father, country singer Billy Ray Cyrus, defended his daughter, O’Reilly asked whether he should be “shunned.” Even Brooke Shields, who played mom to Cyrus’s Hannah Montana, felt the need to weigh in and demand answers: “I was Hannah Montana’s mother. I do not approve. Where did I go wrong? I just want to know who’s advising her, and why it’s necessary?” (By contrast, Shields remains “shocked” by the controversy over her own performance in the infamous “You wanna know what comes between me and my Calvins? Nothing.” ad campaign, which she shot when she was just fifteen years old (Cyrus is twenty), and which was banned by CBS.)

And yet no one blames you, Gloria, for raising a son whose music and videos are—in addition to being just as "obscene" as Cyrus’s (and just as arguably misappropriating of black culture and glorifying of drugs)—kinda rapey. Following the VMA hoopla, Cyrus's father canceled a scheduled interview with Piers Morgan at the last minute. But free from the burden of having to defend your parenting and your child, you can grant media interviews in which you accept the condolences of a shamed nation and join the #MileyGate pile on. It’s all a little reminiscent of Justin Timberlake, whose image was only barely and very temporarily tarnished by the “wardrobe malfunction” of Janet Jackson (remember her?), which he, too, apparently helped orchestrate. I don’t personally care about either Cyrus’s butt or Janet’s nipple, Gloria. But I am annoyed by the double standard involved in criticizing the female but not the male co-venturers in these manufactured controversies—the twerkers but not the twerkees, if you will—which is why I'm writing. (More after the jump.)

Judith Butler, Hip-Hop Style

For all who have attempted to read Judith Butler and found her writing a bit, ahem, obscure, writer Chelsea Clammer has a funny essay called "Li'l Butler" over at the Doctor T.J. Eckleburg Review.  She reads Butler side by side with lyrics from Lil' Wayne: "[H]ere I am, reading the grammatically challenging quality of Butler’s work while listening to Lil’ Wayne get all creative about power, sexism, and oppression, and by god—it happens. I read Butler, I hear Lil’ Wayne, and now the two of them are call-and-responsing to each other in my mind...." 

Clammer imagines the results in a faux "syllabus" for a class on "Feminist Theory and Misogynistic Rap Mash-up 101":

Week 1:

 On the subject of grief and broken relationships:

Judith Butler says, “Let’s face it. We’re undone by each other. And if we’re not, we’re missing something….One does not always stay intact.”

That sounds depressing. But Lil’ Wayne sure does know how to incorporate the notion and idea of grief into his life in a positive way, “Got the girl twisted...."

Week 2:

On the subject of longing:

Judith Butler says, “Love is not a state, a feeling, a disposition, but an exchange, uneven, fraught with history, with ghosts, with longings that are more or less legible to those who try to see one another with their own faulty vision.”

Ooookay. Now, Lil’ Wayne, I ask of thee, how do we acutually see each other, but more importantly how do we deal with our longings?

Lil’ Wayne jumps in with, “Had my heart broken by this woman named Tammy...."

Week 3:

On the subject of power and opressive hierarchies:

Judith Butler tells us that, “To operate within the matrix of power is not the same as to replicate uncritically relations of domination.”

Holla back, Lil’ Wayne. How do you think we can navigate power relations—such as the domination of the wealthy over the poor and how the “esteemed” white race is always acting like they own the place?

He says, “No matter who’s buyin’, I’m a celebration. Black and white diamonds, f*ck segregation.”

And to those impeccably brilliant explanations, I say, word.

The asterisks are mine, not Clammer's.  Lil' Wayne lyrics more robust (!) without the elipses.  Read Clammer's full piece here.

 

The Last Polka

My guest blogging began with a post in memory of The Band’s Levon Helm.  I would be remiss if I did not circle back by sharing a hidden gem and seeking other Shmengeheads. 

The Shmenge’s Last Polka is a mockumentary about brothers, Yosh (John Candy) and Stan (Eugene Levy) Shmenge, retiring from a long and illustrious career as the greatest Polka duo ever.  The format follows Martin Scorsese’s classic, The Band The Last Waltz.  The Shmenges were born on Second City TV and also known as the Happy Wanderers.

 Unfortunately, this classic has not made its way across the digital divide and is not (yet?) available on DVD, or whatever we’re using now.  Fortunately, a fellow Shmengehead posted the film in several parts in cyberspace. Here’s a part of the film with a Linsk Minyk (Rick Moranis) sit-in and banter.

 Thank you to the Lounge regulars for sharing their forum and to all the readers for sharing their time.  I hope to see/meet you at SEALS later this summer or somewhere down the So Many Roads we all know.

Cheers,

Joe

p.s. The last link above is to a late era Robert Hunter / Jerry Garcia song.  Jerry flubs a few lyrics, but this inspired performance from the Boston Garden in 1994 is worth seven and a half minutes of any music lover’s time, at least once.  For some reason, Jerry vocally wails on “to heal my soul” at the end, instead of the usual “to ease my soul.”

 p.p.s. RIP Doc Watson.  Sitting on Top of the World

 

Law & Morality: John Edwards' Defense Works

In closing arguments, John Edwards' attorney argued that he committed sins, not crimes.  With one not guilty verdict and a mistrial on the other five counts due to a deadlocked jury, it appears that his defense worked.  This explicit defense separating law from morality could be good fodder for Jurisprudence courses and other dicussions about the overlap between law and morality.

For an interesting read on how the National Enquirer broke the story, here's an article on Huffington Post by David Perel, then-Editor-in-Chief of the National Enquirer.  The article details the investigation and provides Perel's take on what this saga says about our presidential politics and the ability to find truth in courtrooms.  Here's an excerpt:

Edwards, Hunter and Young retained separate counsel in an attempt to stop the Enquirer's expose of the affair, the pregnancy and the money trail. None of them knew that for months a team of Enquirer reporters, living in Young's gated community, watched Hunter and Young daily and had knowledge of Hunter often dining at the Young's house. So when Andrew Young and his attorneys contended that HE was the father of Hunter's baby, incredulity was replaced by laughter from my team. Yes, we were supposed to believe that he brought his pregnant mistress home regularly for dinner with his wife and children.

I can imagine The Who's I'm Free running through Edwards' brain head right about now.

 

Teaching Methodology Question

In an effort to self-assess and improve my teaching, as well as to provide the 1Ls I will be teaching next Fall with tips from successful prior students, I sent an email with several questions to the students that earned an A- or A in my Contracts II class this Spring.  Here is the list of questions:

1. How did you prepare for class?
2. How did you approach your time in class?
3. How did you prepare for the exam?
4. Did you use any commercial study aids?  Helpful or not? Which ones?
5. Did you participate in study groups? How often? How many people? Helpful or not?  (No names, please.)
6. What can I do to improve my in-class performance? (Please be frank and candid about my in-class weaknesses.)
7. What do I do in class that is helpful?
8. What would you keep about the class structure? (reading assignments, going over problems, hypos, cold calling, etc.)
9. What would you change about the class structure?
10. What are your thoughts on the exam structure?
11. Do you have any other comments?

Of the responses received thus far, all students answered number one along these lines: did the reading and took notes before class.  Shocker, I know.  But, I believe this will be good info for the incoming 1Ls: It’s not rocket science, but it requires hard work.

Here is a specific response to question 6:

I would suggest trying to explain some of the subject matter first, and then using the cases to apply it. I felt like most of the time, we did it the other way around--went through the cases and then relied on the notes after the cases to extract what subject matter we needed to pull from the cases. 

The student is correct about the methodology. Here was my response:

There is a pedagogical reason. If I tell students the rules upfront, students will tend to memorize rules. If students have to work through the cases and notes, then students will better internalize law because they formulated the conclusions more on their own.  This is part of the “thinking like a lawyer” meme students often hear from law profs.  I never want to leave students hanging, and telling the rules upfront helps students know them more quickly, but I’m not confident they understand the rules / rationales more deeply.   This is similar to the idea that a student who makes their own outline knows the material better than the student that simply received a prior student’s outline or a commercial outline. It’s the hard work and struggle that builds a lawyer’s mind.  That said, you don’t have to agree with my approach and I will certainly continue to think about this issue.

I am curious about your thoughts on how to approach classroom learning.  Do you have any thoughts on the student’s view or mine?  Is stating the rules upfront a better approach?  A good approach?  What techniques do you use with 1Ls?

p.s. Crosby Stills and Nash’s Teach Your Children or Steely Dan’s My Old School would be fitting songs for this post, but David St. Hubbins Michael McKean is on my mind after being hit by a car in New York City yesterday.   McKean's leg was broken and he is expected to make a full recovery, but understandably will not be performing tonight in "Gore Vidal's The Best Man."   Get well soon, Michael and remind your understudy of this mantra: Tonight I’m Gonna Rock You Tonight!

Lucy Dalglish Named Dean at Maryland College of Journalism

Academia is gaining a great advocate for speech and press freedom. Lucy Dalglish, Executive Director of the Reporters Committee for Freedom of the Press, has been named Dean of the University of Maryland's Phillip Merrill College of Journalism, effective August 1, 2012.

Here is an excerpt from the press release:

Dalglish comes to Maryland after serving for more than twelve years as Executive Director of the Reporters Committee for Freedom of the Press, a voluntary, unincorporated association of reporters and news editors dedicated to protecting the First Amendment interests of the news media. Based in Arlington, Va., the Reporters Committee has provided research, guidance and representation in major press cases in state and federal courts since 1970. Ms. Dalglish is President of the National Freedom of Information Coalition and Supervisor for the Sunshine in Government Initiative, a coalition of media organizations working on federal information policy, which she co-founded.

Prior to assuming the position of Executive Director in January 2000, Dalglish was a media lawyer for almost five years in the trial department of the Minneapolis law firm of Dorsey & Whitney LLP. From 1980-93, Dalglish was a reporter and editor at the St. Paul Pioneer Press.

This year, Ms. Dalglish won the National Press Foundation's W.M Kiplinger Award for distinguished contributions to journalism. In 1995, she was awarded the Wells Memorial Key, the highest honor bestowed by the Society of Professional Journalists for service to the Society and the journalism professions, and in 1996, she was inducted into the National Freedom of Information Act Hall of Fame. Dalglish earned a juris doctor degree from Vanderbilt University Law School in 1995; a master of studies in law degree from Yale Law School in 1988 (where she was a Knight Foundation Journalism Fellow) and a bachelor of arts in journalism from the University of North Dakota in 1980.

Thank you to Lucy for her leadership at the RCFP and welcome to academia!

As for music, this Umphrey's McGee line from the song, Bridgeless, conveys one of the underlying purposes for robust free speech and press rights:

The more you breathe open-minded air

 You'll be reminded of why we're here.

I'm the Slime?

As the Supreme Court’s second decision in three years in FCC v. Fox Television Stations, Inc. nears, a brief history of indecency regulation may be of interest and begins with a tie to music.

In 1970, the FCC levied its first indecency fine.  The FCC fined a Philadelphia non-profit educational radio station, WUHY-FM, $ 100 for broadcasting a pre-recorded interview with Jerry Garcia.  Garcia interspersed his musings on a vareity of topics with indecent language, such as "political change is so fucking slow." No one complained about the broadcast.  The FCC was monitoring the radio station.  In dissent, Commissioner Nicholas Johnson conveyed bewilderment and disdain about the FCC’s decision to fine this particular station:

[W]hen we do go after broadcasters, I find it pathetic that we always seem to pick upon the small, community service stations . . . It is ironic to me that of the public complaints about broadcasters' ‘taste’ received in my office, there are probably a hundred or more about network television for every one about stations of this kind. Surely if anyone were genuinely concerned about the impact of broadcasting upon the moral values of this nation — and that impact has been considerable — he ought to consider the ABC, CBS and NBC television networks before picking on little educational FM radio stations that can scarcely afford the postage to answer our letters, let alone hire lawyers. We have plenty of complaints around this Commission involving the networks. Why are they being ignored? I shan't engage in speculation.   Download In Re WUHY FCC 1970

In 1975, the FCC received one complaint because a New York radio station broadcasted George Carlin’s Filthy Words monologue in the afternoon.  In 1978, the Court held in FCC v. Pacifica Foundation that regulating indecent speech on broadcast radio and television did not per se violate the First Amendment.  The Court based its decision on the dual rationales that broadcast radio and television are uniquely pervasive in society and that they are uniquely accessible to children.  Justice Powell’s concurrence made clear that the Court did not decide whether the isolated use of a potentially offensive word could be regulated and that the holding was limited to the specific context of Carlin’s “verbal shock treatment.”

For a quarter-century, the FCC maintained that fleeting expletives did not rise to the level of indecent speech.  But, after Bono used a fleeting expletive when receiving a Golden Globe award, and Cher and Nicole Richie made similar transgressions on the Billboard Music Awards, the FCC reversed course and issued its 2004 Golden Globe Order finding that any use of the words fuck or shit is inherently indecent, except for a couple of exceptions.

 In 2009, the Court held 5-4 that the FCC rule change did not violate the Administrative Procedure Act’s arbitrary and capricious standard.  Justice Stevens, who wrote the majority opinion in Pacifica, dissented in Fox I.  Now, the Court considers whether the FCC’s indecency regulation violates the First or Fifth Amendments.

One would be hard pressed to argue that broadcast radio and television are still uniquely pervasive in society and uniquely accessible to children in light of the numerous media technologies that exist, especially considering the ubiquity of mobile devices with internet access.  Not only do the rationales of Pacifica fail to reflect the realities of 2012, advertisements like the Go Daddy commercials that air during the Super Bowl and for products like KY Intense, an “arousal gel” make futzing around with fleeting expletives a rather futile exercise. Justice Stevens made a similar point in a footnote to his Fox I dissent: "It is ironic, to say the least, that while the FCC patrols the airwaves for words that have a tenuous relationship with sex or excrement, commercials broadcast during prime-time hours frequently ask viewers whether they too are battling erectile dysfunction or are having trouble going to the bathroom."

Here’s Frank Zappa performing, I’m the Slime on Saturday Night Live in 1976, complete with guest vocals by Don Pardo.  Zappa’s take on the slime oozing out of the tv set is more aligned with Commissioner Johnson’s WUHY-FM dissent, than a concern about “bad words.”

Can't Blame the Youth

Holland & Knight (Jacksonville) hosts a program called Learning for Life, for high school students interested in law.  The firm invites speakers with various legal backgrounds to share their experiences with the students.  I had the privilege of being invited to provide remarks to this group last night.  Most of the students were freshmen and they were impressive.

I gave them a short reading assignment in advance.  The American University Law Review's 2009 Symposium commemorated the 40^th anniversary of Tinker v. Des Moines Independent School District. Mary Beth Tinker contributed an inspiring foreword.  Tinker wrote:

I have come to view the Tinker decision in the context of children’s rights and international human rights, and decided that if democracy means anything, it means that the ones affected by policies—including young people—should have a voice in those policies. By sharing my experience and the experiences of other youths, I found that I could empower students to be active participants in democracy, taking steps that may not always be popular, but could have important lasting effects and ultimately change history.

Tinker’s brief essay provided a good place to start our conversation and my theme: we live in a self-governing society and the youth have a voice.  One student commented that he admired Tinker’s perseverance and ongoing dedication to her cause.  Before discussing specific areas of law, I offered them four keys to empowerment: Read; Think for yourself; Engage in critical, analytical thought; and Question Everything.

The specific areas of law I covered were net neutrality, electoral reform and copyright.  While I am sure some of the material went over their heads, I am certain that students are capable of understanding quite a lot given the chance.  For example, I believe I successfully conveyed a sense of regulatory capture through this Q&A:

Me: What is your most difficult class?

Student: English.

M: What would you do if you could write the exam?

S:  I would probably create an exam with questions that I could answer.

M:  That makes sense.  Do you think that is right?

S: No.

To be sure, it’s not a perfect analogy, but I believe it conveys the idea that relational structures exist for a reason and that they can be abused.

Also impressively, a freshmen student was able to provide a good explanation of the how the Electoral College works.  (Because most of these students were four to six years old in 2000, I thought I’d better ask if they knew who the presidential candidates were in 2000.  At least one student knew the answer.)

When I discussed copyright, I explained the purpose of the copyright and patent clause to raise the issue of how long one must have exclusive rights to incentivize the creation of new works.  After showing the actual text of the clause on a powerpoint, I attempted to translate that text in the next slide: “We want people to write new books and create new inventions because it serves the public interest.  Thus, we will allow writers and inventors an exclusive right to make money off their work, but only for a limited time. Then, the whole public can use it.”

When I asked for how long they would need exclusive rights to be incentivized to create new works, the answers ranged from one year to a few years, a far cry from the life of the author plus 70 years after death that currently exists.  After showing them the current duration, I showed them that the original duration under the Copyright Act of 1790 was 14 years.  When I asked why this might have changed, it provided an opportunity to weave in the regulatory capture theme.

I hope the students enjoyed the experience and that my remarks help avoid what frustrates Calvin and many of us:

Today’s music is Peter Tosh’s, “Can’t Blame the Youth,” set to a user-generated collage video.

Dewey, McKay & Sandel

Today’s post weaves together the collapse of Dewey & LeBoeuf, the music of Nellie McKay, and Michael Sandel’s new book, What Money Can’t Buy: The Moral Limits of Markets.

But it seems so creepy. Winning can leave you feeling sleazy. – Nellie McKay, “Beneath the Underdog.”

On May 2, the New York Times quoted one of the approximately 30 unfortunate law students that lost his summer employment with the fall of Dewey:  “A firm may look like a corporation, yes, but we’re all part of a fraternity of lawyers.”  Two days later, James Stewart’s NYT article asserts that Dewey’s demise “shatters the perception” that “law is at heart still a guild . . . a profession more than a business.” Stewart supports his premise with a former Dewey partner’s lament that firms are partnerships in name, but that attorneys have become free agents and thus destabilized the legal profession. 

The debate that Sandel seeks to further in What Money Can’t Buy seems to have an important place in the changing landscape of the legal profession.  In short, we have transformed from a market economy to a market society.  This transition has been done thoughtlessly, has resulted in negative consequences and it is time to have a robust debate about where market systems should not exist or at least have greater limitations based on moral considerations.

While I share the optimism and belief of the law student quoted above about law being something more than a business, my experiences since law school lead me to simultaneously share the sentiments of Stewart about the legal profession (to a degree) and Sandel about our national dialogue beyond law.  To be sure, money cannot be wholly extracted from the legal profession, nor do I believe it would even be a positive development, let alone a practical one.  But, the calling of justice certainly cannot be solely (or most likely predominantly) market based without losing focus on the role that the profession of law plays in society.

As for Nellie McKay, she is an eclectic, edgy, independent musician whose lyrics often seem apropos as I reflect on the events of the day.  Another great line from her song quoted above:  “I don’t get people. I don’t get the things they think are reasonable.”  Here’s her somewhat bizarre video for Beneath the Underdog.  Another song that may be of interest to the Lounge is her Song for Troy Davis.

Ladies of Liberty: DiFranco & DeMent

Ani DiFranco and Iris DeMent each have lyrics that expand far beyond the relatively narrow scope that politics plays in the life of a human being. They also have some inspirational and poignant songs that add to our political discourse.  Ani and Iris provide an opportunity to talk cyberlaw, ponder the move to a national popular vote and share some of their music.

“My country ‘tis of thee, To take shots at each other on primetime tv” – Ani, “‘Tis of Thee”

With election season in full swing, the flood of negative and misleading political ads (from all sides and SuperPACs) will soon drowned the airwaves . . . at least in swing states like Florida. 

When I teach Cyberlaw, I include Porter v. Bowen, a Ninth Circuit case holding that vote-swapping is protected by the First Amendment and not a violation of criminal or electoral codes.  Citizens formed a website whereby voters in safe states could swap their votes with voters in swing states. The purpose was to have the 2000 Green Party candidate, Ralph Nader, receive five percent of the national vote so that the Green Party would qualify for federal funds in future elections, without hurting Gore’s chances of winning the Electoral College. 

For example, a voter in Ohio that wanted to vote for Nader would vote for Gore, while swapping her vote with voter in say, Alabama (a safe state for Bush) or Massachusetts (a safe state for Gore), who would vote for Nader.  Shortly after this website began, at least one other website was created that allowed voters to swap votes for any third-party candidates with either Bush or Gore, thus expanding vote-swapping beyond Nader-Gore swaps.

I teach this case in Cyberlaw because, in addition to discussing how technological changes raise new legal questions, it also allows for a discussion on whether the Electoral College is something that remains desirable in our self-governing society.  After all, if there was no Electoral College, there would be no need to engage in vote-swapping.  While it’s hard not to forget that Gore won the national popular vote in 2000, it’s also worth noting that Obama’s “landslide” victory in 2008 was not so large when considering the national popular vote margin.  Obama won 67.8 % of the Electoral College (365 to 173), but only 53% of the national popular vote.  Does technology provide a reason to shift to a national popular vote?

Perhaps technological developments make a national popular vote system more practical than in the late eighteenth century. Whether one is in Wyoming or Washington D.C., real-time information is available through broadband, cable and radio. Is it not better for candidates to have an incentive to campaign in all fifty states by making every citizen's vote count in the final tally?  Is it likely that voters on the losing end in a safe state might be more motivated to actually vote if they know it’s not in vain? 

As I’m sure some here know, there is an organized movement for instituting a national popular vote.  The plan involves a legislative pact among states to provide all the electoral votes of a state to the national popular vote winner.  By December 2010, the District of Columbia and five states (Illinois, Hawaii, Maryland, New Jersey and Washington) have enacted legislation to implement the plan.  Together, they make-up one quarter of the electoral votes needed to deliver an Electoral College victory. The plan will only be implemented once enough states have enacted legislation to win the Electoral College.  The Brennan Center for Justice is listed among the endorsers of this national popular vote plan.

Here’s Ani performing a version of her 1999 song, ‘Tis of Thee, at Ralph Nader’s October 2000 Madison Square Garden campaign event.  In the March 2012 issue of Relix magazine, Ani shared some of her thoughts on Obama’s performance thus far. While she may be critical of the lack of tangible changes, she makes an important, if obvious, point about how a self-governing society functions:  “If he really felt, in this arena of dragons and monsters, that he had the force of the people behind him, he’d more empowered to act in the way that we want him to act.  But we as people kicked back and said, ‘OK, fix it.’”  

Turning to Iris DeMent, her 1996 song, Wasteland of the Free is one of my favorites.  Sadly, its message has only grown more descriptive of our society as the years roll on.

Finally, in preparing this post, I stumbled across an organization called, Ladies of Liberty Alliance. The self-described mission of this organization is to “address the shortage of female leaders in the fight for liberty.”  One has to think the organization’s founders have a sense of humor and musical acumen based on their clever acronym (LOLA) and domain name, www.iamlola.org. The “Chairman” (LOLA’s word), Angela Keaton, holds a J.D. from the University of Florida.  While I have not explored the specifics of LOLA’s agenda, it certainly seems like a group of engaged citizens that will not leave any president alone in the arena of dragons and monsters.

p.s. The only endorsements in this post are for the respective music of Ani DiFranco & Iris DeMent.

Life is a Carnival

Thank you to Jacqui, Dan and everyone for welcoming me as a guest here.

On April 19, 2012, Levon Helm died.  Before he left this world, he left us with much to celebrate.  Today, I thread The Band through this post to introduce myself and to pay tribute to a great drummer, singer, lyricist and person.

One of my fond high school memories is driving from Cincinnati, Ohio to a Notre Dame home football game with my father, Joseph P. Tomain, Dean Emeritus at the University of Cincinnati College of Law.  We drove in his, later to be mine, 1984 Corolla.  I don't remember who they played or if they won.  I do remember that our '84 Corolla lacked a cassette player. So, we brought a boom box.  We listened to the live recording, Before the Flood, by Bob Dylan and The Band. 
I'll always remember that trip and that boom box playing Before the Flood from the backseat. It's amazing how music can place and hold memories in our lives.  I went on to attend Notre Dame for undergrad and law school.

Speaking of Notre Dame, I enjoyed tuning into The Daily Show in March 2012 to see my Contracts professor, Cathleen Kaveny, discussing her forthcoming book, Law's Virtues: Fostering Autonomy and Solidarity in American Society.  My favorite line of the interview came when Stewart asked Kaveny, what's the difference between a Catholic institution providing health insurance that includes contraceptive coverage and paying an employee a salary who later spends some of that money on contraception.  Kaveny's reply:   "You could be a moral theologian."  Nice work, Prof. Kaveny!  The Band have their moments of moral theology, as well.  (see e.g. When You Awake).

Speaking of teaching Contracts, when I send an email to my class, I usually quote some lyrics and provide a link to a version of the song below my signature.  After Levon passed, I quoted "The Weight" and included a RIP for Levon.  While a few students had commented on evaluations that they enjoyed these treats at the end of my emails, none ever brought it up in person, until this one.  A twenty-something student stopped me after class to say he enjoyed the quote and had recently been watching Martin Scorsese's The Last Waltz in memory of Levon.  I'm happy to know that some students find a connection in this extra-legal dialogue.

Finally, I play in an Ultimate Frisbee league in Jacksonville, Florida.  (A couple of law students play in the league as well. Like the vast majority of Ultimate players I know, these law students are great people.)  When my team captain solicited ideas for our team name, I offered a few names in honor of Levon.  Our team adopted the name, "Cripple Creek."  While I'm thankful these youngsters indulged me and took a liking to Cripple Creek, my favorite team name idea was, "The Shape I'm In." (could be better, could be worse, but I digress)

Throughout May, I look forward to combining my love of law and music with various topics to share with the Lounging community.  And remember, Life is a Carnival.  Enjoy Being!

Setting a Record

On this date in 1949, vinyl records were introduced by RCA (45 rpm) and Columbia (33.3 rpm). Can you name the first film that included the release of a soundtrack?

For Your Listening Pleasure ...

For readers looking for some wonderful holiday music, I'll pass along these two suggestions:

O HOLY NIGHT (Mormon Tabernacle Choir and Orchestra, joined by The King's Singers):  click here.

THE TWELVE DAYS OF CHRISTMAS (the a cappella group Straight No Chaser):  click here.

Other suggestions?

AT&T Advertising for Merger Clearance

Is anyone else bothered by all the advertising AT&T is doing about how much better AT&T service will be after anti-trust clearance of its acquisition of T-Mobile?  AT&T has a "Focus: Houston" web-page that advertises all the upgrades AT&T has made to cell-service in the Houston area. On the right-had side is a link to an interactive map of 4G/LTE service in Texas with, and without T-Mobile.

All that advertising makes two things clear:

• the relative quality of AT&T's existing service; and
• anti-trust law & policy is less about law & policy, and more about politics and lobbying!

It's not your father's anti-trust--or even the anti-trust I studied in law school. As The Byrds, interpreting Bob Dylan's My Back Pages sang:

Ah, but I was so much older then
I'm younger than that now

I suppose it was always about putting your own spin on it.  The Road Not Taken (Frost), and all that.

Twitter Libel

TMZ reports that New Edition member Johnny Gill is facing a lawsuit (presumably for libel) based on what he said in a tweet. Being sued for what you say on Twitter is nothing new.  As we've covered at TortsProfs, Twitter libel suits are fairly common these days.  Kim Kardashian, for example, was sued based on a tweet. But Johnny Gill appears to think that 140 characters or less provides a license to say anything.  He reportedly told TMZ that people shouldn't be allowed to sue based on a tweet because "the courtrooms would be filled with a bunch of Twitter people complaining about things people say every day."

His remark caused me to think about electronic communication generally.   What is it about electronic communciation (tweets, emails, texts) that causes us to say things we otherwise would not say orally or in a non-electronic writing?  It could be the mere speed of the communication.  Maybe we just speak too soon without any reflection time.  But is it something more than just speed?

Fortieth Anniversary of Marvin Gaye's "What's Going On?"

I understand that today is the fortieth anniversary of the release of Marvin Gaye's "What's Going On?" album.  That was one of the first cds I bought when I first got a cd player way back when -- I think it was inspired more by an advertisement for some hi-fi system than by an understanding of the social significance of the record.  But whatever.  That was a long time ago -- so long ago, in fact, that I've since lost the cd.  Probably a victim of one of my many moves -- or maybe I loaned it to someone.  Who knows.

Be that as it may, this reminds me of a post I put up at propertyprof about five years ago on Marvin Gaye's rendition of the National Anthem at the NBA all star game in 1983.  (Here's an NPR story from 2003 about it.)  It's a great, great story, which has taken on mythic proportions.  There was fear Mr. Gaye wouldn't show up, then that the rendition wouldn't go well and, afterwards, about how he held the audience. It was his last appearance on national television.  There was also fear when the tape began to play that they'd put in the wrong tape, because the first few seconds didn't sound like the National Anthem.

One aside here: Mr. Gaye was running late and the officials at the game asked an usher to stand in, which she was happy to do.  That vignette reminds me of one of my heroes, Ralph Ellison.  Mr. Ellison was working away in mostly anonymity until his 1952 novel Invisible Man appeared.  There are many, many talented people out there whose talents we may never know.  We were fortunate to learn of Ellison's talents--but that usher, who might have filled in for Mr. Gaye, remains anonymous.  The most recent example of suddenly (though belatedly) recognized talent that comes to mind is James Carter's rendition of Po Lazarus, which Alan Lomax recorded in Mississippi in 1959.  Lo those many years later, it was used as part of the soundtrack to O Brother Where Art Thou?  And, after some searching, Mr. Carter was located in Chicago, given a big check, and a Grammy.

Here's a link to a video of Mr. Gaye singing the "Star Spangled Banner" on youtube.  And here’s a nice article about it, too.

Obama: Model of a Modern U.S. President

With thanks to one of my Aussie colleagues for sending this to me, I thought some of our readers might enjoy this Gilbert & Sullivan parody for a Christmas chuckle...

 

Wise Man Needs Ride

Alternate title:  The Camel, The Church, and The Torts Exam

Story here.

Perhaps I should pass this news along to the music minister at the local mega-church where I worship.  I'm attending our Christmas extravaganza this afternoon, and I'm told that an elephant will walk the aisle.  Guess I better check the location of my seats.