Author: Howard Wasserman

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The remedy to be applied is distancing speech

I have not written about the numerous controversies that have sprung up over anti-Islam ads by the American Freedom Defense Initiative on public-transit billboards throughout the country. The ads feature the slogan “In any war between the civilized man and the savage, support the civilized man” and urge people to “Support Israel/Defeat Jihad.” Transit authorities have sought various ways to deal with ads that many find offensive and which have sparked fears of both anti-Muslim discrimination and Muslim violence. Efforts to block the ads have, quite correctly, failed–transit billboard spaces are public fora and the objection is pretty clearly content- and viewpoint-based.

One solution to post disclaimers next to the AFDI ads, stating that Muni “doesn’t support the message” (San Francisco’s Muni) or, for those who want legal detail,  “This is a paid advertisement sponsored by [sponsor]. The advertising space is a designated public forum and does not imply WMATA’s endorsement of any views express.” (Washington, D.C.’s WMATA). Pam Geller, a conservative blogger, co-founder of AFDI, and driving force behind this ad campaign, derided the San Francisco plan as “the manifestation of Sharia in Western society,” which seems just a tad overwrought. Read More

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More on electoral politics and “Friday Night Lights”

A follow-up to my post about Mitt Romney coopting “Clear Eyes, Full Hearts, Can’t Lose” from Friday Night Lights and the objections of the show’s producer:

Dan Hopkins (political science at Georgetown), writing at The Monkey Cage, applies a model to predict how the major characters would have voted in 2008. He concludes that pretty much everyone would have voted for McCain, including Mrs. Coach, although I am not sure I agree with that one. He does not discuss Julie Taylor (Coachette, if you will), whose “get-me-out-of-this-small-town” attitude likely makes her a Democrat. Definitely worth a read.

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What if they’d stayed in law school?

Michael Madison (guesting at Faculty Lounge) started a discussion about famous people who have started, but not completed, law school before going on to fame and fortune. He and his commenters have identified Gene Kelly, Paul Simon, and Cole Porter (who, while giving up the law, famously set the old standard for summary judgment in a case still included in many case books, even if students no longer know who Porter was).

Can you think of others? Leave comments here or at The Lounge (or both).

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Outsourcing NCAA enforcement

An excellent and thoughtful essay in The Atlantic from my friend and law school classmate Stephen Miller, arguing that the NCAA should charge an outside body with conducting major investigations and punishments. Steve is a former Scalia clerk and AUSA; his practice now includes representing athletes in NCAA proceedings. He also is a lifelong Kentucky fan, so he is personally familiar with the vagaries of NCAA enforcement.

This is an interesting take, especially if we begin from the premise that the NCAA is here to stay, that there is good reason to regulate intercollegiate athletics and the conduct of student-athletes (in terms of amateurism, academics, etc.), and that self-regulation, given the structure of college sports, is unworkable.

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Today in sanctionable lawsuits

A New Orleans Saints fan named David Mancina has filed a putative class action against Roger Goodell and the NFL, alleging that Goodell and the league’s suspension of Saints players entitles Mancina and other Saints fans to damages from (I am not making this up) “the diminishment in the value of their tickets; their personal emotional reaction to the unwarranted penalties inflicted on their beloved team, players, coaches, and executives; and the deliberate reduction of the competitive capability of the Saints due to the selective gutting of the critical components needed to justify the loyalty of Plaintiff and the class.” And according to the complaint, he actually had counsel to do this.

The first, obvious response is they lack standing. But the defects in this go so far beyond that. This has to be sanctionable, and I am not someone who is big on sanctions. If one of my students turned this in in a drafting exercise, she would fail. Read More

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10 Tips for Giving for a Job Talk that Doesn’t Suck

My FIU colleauge Joelle Moreno (who is our Associate Dean for Faculty Research and Development) offers ten job-talk tips, with which I concur. As hiring season ramps up this week, hope people, on both sides of the process, find these helpful.

Remember you are salmon swimming upstream

Every school that paid the big bucks to attend the meat market is bringing back a slate of candidates.  It may only be six, but more likely it is ten to twelve.  This means that the faculty is exhausted before the first candidate even arrives.

Most of you have received bad advice.

If the 75 job talks I have attended over the past dozen years are any indication, most faculty candidates have been advised that the goal is to convince the faculty that you are a deep thinker and the smartest person in the room.   This is bad advice.  Your goal is to be interesting, to make us understand why you care, and to leave us wanting more.

1.              Don’t be Boring

Your most important and challenging task is not to convince us that you are smart.  Assume that all of the candidates we have invited to campus are smart.  You have 30 minutes to make us care about your ideas and your work.  The best way to do this is to explain why you care.

2.              Be Clear

Use road maps and signposts.  Begin with a road map for your talk that explains why you are interested in this topic and what you hope to accomplish in your talk and your research.  Use signposts to signal transitions (e.g., “I’ll begin with a brief discussion of the legal history.”  “Now I will explain why recent developments in behavioral economics provide new insight.”)  If we can’t understand what you are saying and where you are going — what hope do our students have?

Read More

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Clear eyes, full hearts, can’t lose (the election)

A mini controversy has sprung up over Mitt Romney adopting the slogan “clear eyes, full hearts, can’t lose” from the tv show Friday Night Lights as a campaign rally slogan. Peter Berg, the show’s creator, wrote a letter to Romney telling him that his “politics and campaign are clearly not aligned with the themes we portrayed in our series” and asking him to “[p]lease come up with your own campaign slogan.” No word, at this point, whether the campaign is going to acquiesce.

This is just the latest in a repeated story–GOP candidate uses some pop culture theme (song, show, slogan, character, etc.) and its creator complains and asks him to stop. And to the extent Berg is correct that Romney’s politics are contrary to the show’s message, that, too, is par for the course. Politicians (and others) have long been using Mellencamp’s Pink Houses and Springsteen’s Born in the U.S.A. as “rah-rah, America is great” songs, completely missing the songs’ obvious theme that America has ignored and abandoned segments of society–the working class, Viet Nam vets, working-class Viet Nam vets.

Several media critics have argued that it is not clear whether the show’s political message is consistent or aligned with the campaign’s message, because the show’s politics are not clear. The show, they suggest, was both liberal and conservative–”bi-partisan,” as one critic writes. Slate’s David Plotz argued last year that the show’s politics are “communitarian;” it values the communities that we create of whatever form–families, friends, schools, small towns, teams, team boosters, churches, etc. It’s an interesting insight, although I would counter that the central institutions depicted–the school, the football booster club, and the town that loved its team–all were corrupt and influenced by wealthy individuals with questionable motives and all screwed over Coach and Mrs. Coach at just about every turn. Anyway, the argument now seems to be that a show with political universality should not be coopted by one side or the other.

The question is whether it matters. Putting to one side any intellectual property issues and whether a political campaign can claim fair use of the song/slogan/show, what difference does it make whether the candidate’s use of the song/slogan/character is consistent with its original or intended message? In fact, isn’t the “fair use” argument stronger if the candidate can argue that he is giving new or altered meaning to the culture referent? Plus, whatever the message of FNL itself, the “clear eyes” slogan has little or nothing to do with any of that.

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In Defense of the Infield Fly Rule

My post on the controversial Infield Fly Rule call in last week’s National League Wild Card game generated a number of comments and emails, several suggesting that, not only was the call wrong, but that the rule itself is a bad idea and should be scrapped. This motivated me to write a defense of the Infield Fly Rule, which now has been published on The Atlantic.

By the way, media opinion on last week’s call seems to be changing. Two of the stronger defenses are here and here (with video breakdown).

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Law on TV

It is not breaking new ground to say that television is fascinated by law and lawyers, even if the portrayal is never quite right. It does give us some exam or discussion ideas or at least something to blog about. To wit:

On Parenthood, the lawyer character got into trouble at work because she missed the deadline for submitting her responses to Request for Admissions (that phrase was repeated multiple times, probably because it sounds fancy–I don’t think I mention Requests to Admit that many times in my entire semester-long class). As a result, the case was going to be dismissed, her client was going to be out millions of dollars, and the firm was going to be sued for malpractice. Opposing counsel declined to accept the late responses because doing so would hurt her client.

This seems really far-fetched to me. Courts don’t dismiss cases for a single inadvertent discovery mistake; it would have taken a whole lot of prior discovery problems for the court to get to that point; would the court really have not forgiven a one-day delay (to the extent the court is even involved in discovery at that point).? I also would expect opposing counsel to agree to the after-the-fact extension, since there probably was no prejudice. The show obviously was trying to set-up work problems so the character can face a work-family balance crisis. And maybe discovery sounded fancier and more lawyerly than a problem (like failing to file a lawsuit on time) that might actually get a case dismissed.

And, hey, anytime you can make drama out of discovery, you have to go there, right?

More questions, with SPOILERS, after the jump.

I also am right in the middle of the most-recent episode of Elementary (Sherlock Holmes in modern-day New York), which does not feel that much different than any other CBS police procedural. Holmes suspects the neighbor of the murder victim of having stolen something from the victim’s apartment, so he kicks in the door to reveal the stolen item; as he is doing this and the neighbor is screaming about him having to get a warrant, Holmes says “it’s a good thing I’m not the police.” That is just flat-out wrong; Holmes acts under color of state law under at least two (maybe three) tests. Can anyone come up with a conceivable argument that he doesn’t?

Finally, here is the one I genuinely need help on, because I know nothing about wills. In that same episode, Sherlock discovers that the two murder victims both had been fathered by the philandering father of a prime suspect. The wealthy man had recently died, with a will leaving the estate to his marital daughters (the suspect and her twin sister). But, Sherlock says, the two victims are “pretermitted heirs” who would be able to come back and make a claim on the estate, thus giving the suspect motive to kill them.

This seems really, really wrong. If the father made out a will, assuming it is valid, he can disinherit or devise to anyone he wants, can’t he? That there might be heirs entitled to a claim in the absence of a will does not mean they can make any sort of claim on an estate that has been probated pursuant to a valid will. In other words, they only would be entitled to millions of dollars (the basis for the motive) if they could show the willis invalid; they could not show entitlement to recover simply because they are descendants. Am I wrong about this? Am I missing something?