Blawg Review #315 - April Fools' Prequel

Trial by jury 1



Surprise! Blawg Review, the blog carnival for everyone interested in law, is ready for its comeback and its close up.

Launched originally in April 2005, and overseen by the still-anonymous Editor, Blawg Review ranged about across the legal blogging landscape, appearing each Monday in a new and different exotic locale for the next six years before seemingly going silent following its 314th edition this past August.

It has been my pleasure to host Blawg Review on my legal blog, Declarations and Exclusions, on five occasions, beginning with Blawg Review #51. Since April 1, 2006, I have also hosted, here, five April Fools' extra editions, in the same week as the Decs&Excs editions. That's ten hosting turns for me, an ample store of evidence from which our Editor was able to infer that, yes, I'm just a blogger who can't say "no" if you were, hypothetically, to float the notion of refiring the boilers under Blawg Review and ending its sabbatical on an April Fool-ish note. Thus it comes to pass that Blawg Review #315 will be up at Decs&Excs on Monday and that the sixth annual April Fools' Edition is now before your disbelieving eyes.

While the original installments of Blawg Review were simple collections of links to the prior week's best or most interesting or most curious legal blogging, it early on became common, albeit never mandatory, for each host to adopt a Theme for his or her presentation. On this day last year, Blawg Review #305 took the form of a tribute to and adaptation of "I've Got a Little List," from Gilbert & Sullivan's The Mikado. Today, I hope I may be pardoned if I return to the same well and build this 2012 April Fools' edition around another popular G&S number, the introductory song of Major-General Stanley from The Pirates of Penzance, best known by its opening line:

"I am the very model of a modern Major-General." 


We need not go into the absurd plot of Pirates today. Suffice it to say that it involves pirates, an unfortunate young fellow apprenticed to their service until his eighteenth birthday, the difficulty posed by his having been born on the 29th of February and thereby having had only four birthdays in eighteen years, a collection of young lovelies who are wards in chancery to the aforementioned Major-General, a collection of unhappy policemen, and a joyous, nuptial ending.

Major-General Stanley himself is a figure of a kind W.S. Gilbert delighted in mocking: a man who has risen to a position of stature for which he has no practical qualifications whatever. What the Major-General does possess is a vast store of arcane and useless knowledge bearing on most every topic except those that might make him an effetive military man. He would likely have made a fine blogger, had the Victorian era offered that outlet.

Upon his arrival in Act I, Major-General Stanley demonstrates his breadth of study with this famous patter song. Here it is, as performed by John Reed, principal comedian with the D'Oyly Carte Opera Company in the 1950's and 1960's:

Here, George Rose performs it in the wildly successful 1980 New York Shakespeare Festival staging in Central Park, with Linda Ronstadt as Mabel and Kevin Kline in his star-making turn as the Pirate King:

Sir Arthur Sullivan's catchy tune has achieved a further measure of immortality thanks to its having been adapted by Tom Lehrer to provide the melody for his cataloging of the chemical elements, "The Elements." (Clever title, that.)

Lehrer's song drew renewed attention recently when the performing of it was revealed to be a favorite party trick of Harry Potter star Daniel Radcliffe. Allow him to demonstrate:

And so, with that tune now well-implanted in your ears, we may turn to the matter at hand. Friends, the 2012 April Fools' Prequel to Blawg Review #315:

Henry Lytton as Major General Stanley 1919



This is the snappy patter-singing April Foolin' Blawg Review.
We're bringing back this legal blogging carnival to all of you
Who've missed it or forgotten it while it's been in absentia:
(A weekly dose of blawging is believed to slow dementia.)
There's many kinds of blawging, folks: it may be theoretical,
From time to time rhetorical, and sometimes alphabetical.
We hope you'll find this parody enlightening and risible....
Inspired by Major-General Stanley's rapid polysyllables.

    Inspired by Major-General Stanley's rapid pollysyllables,
    Inspired by Major-General Stanley's rapid polysyllables,
    Inspired by General Stanley and his rapid Polly Polly syllables! 

The Law's much more than drafting-stuff-while-sitting-at-your-

And offers opportunities for wackinessgrotesquery,
For odd quixotic ventures, and for trumpery and trickery,
And litigants possessèd by the spirit of Terpsichore.
A matter rather serious we feel we need to mention: you
Should click the links below and take the time to pay attention to
The awful depredations of a so-called blogger/journalist
The Lord High Executioner might add to his infernal list.

    The Lord High Executioner might add to his infernal list,
    Oh yes he would indeed do well to add to his infernal list
    That most eternally infernal wicked so-called blogger/journalist.

With cigarettes and chocolates, we try to be responsible.
These clever cartoons educate the criminal and constable
If you work at McDonald's, all your problems may be supersized.
(These blawgs are all original, there's nothing here
    that's plagiarized.)

From blawgs you'll learn a thing or three about judicial etiquette
And dangerous misguided legislators in Connecticut.

Perhaps with an analogy we'll find that a solution'll
Present itself to when a health care mandate's Constitutional. 

    We do not understand it, all this complicated push 'n' pull!
    To find it inter-esting you would have to be delusional!
    We like a nice long walk, yes that's a proper daily

You, too, could be an expert
, so be sure to trim your cuticles

And brighten your appearance through the use of cosmeceuticals.
Now take the time to listen to a podcast full of Georgery
Or head out to a gallery where ev'ry work's a forgery.
Our time here it is fleeting and I fear I hear it flittering
Or fluttering or flattering or maybe even Twittering 
This Prequel's the embodiment of ev'rything that's ex- cell- ent....

   And now that Blawg Review is back, 
  You'll wonder why it ever went!

The Major General - theatre poster 1880


Here are gathered stand-alone links to all of the blawgs embedded in the lyric above. Where multiple entries originate from the same source, I have kept them together, so the order of links below does not necessarily follow the order of links above. 

Above the Law -
"Nanny State Ban on Words Is Lazy Educating By New York State"

The Criminal Lawyer [Nathaniel Burney] -
"Better Criminal Lawyering through Smart Risk-Taking"
Also by Mr. Burney, the ongoing and highly commendable
Illustrated Guide to Criminal Law.

An Associate's Mind [Keith Lee] -
"Churchill's 5 Elements for Persuasive Speaking"

Koehler Law Blog [Jamison Koehler] -
"Cross Examinations. Directs, too." -
"Guide to Rhetorical Fallacies" [Michael Lines]; 
"The Friday Fillip: The Military of Silly Walks" [Simon Fodden] [Kyle Graham] - 
"The Affordable Care Act Oral Argument, If Hollywood Had Scripted It";
"The Gashlycrumb Tinies, Indexed to Franklin, Rabin & Green’s Tort Law and Alternatives" (via Overlawyered); 
Just the Facts, Ma’am: Daily Training Bulletins of the Los Angeles Police Department, in Cartoons (1954)

New York Personal Injury Law Blog [Eric Turkewitz] - 
"A New Personal Injury Waiver (Updated)"

D.A. Confidential - 
"A word in your ear"

 Technology & Marketing Law Blog [Eric Goldman] - 
"What Do Soymilk and Nutella Have to Do With an Online Harassment Case?--Taylor v. Texas"

California Appellate Report
"Brantley v. NBC Universal (9th Cir. - March 30, 2012)"
["It basically depends on if you know you're Don Quixote or if, instead, you're actually Don Quixote."] 

"The RNC shoots itself in the mouth

WSJ Law Blog - 
"Witches’ Brew! NY Suit Over Court Victory Dance Continues

The Legal Satyricon [Marc Randazza] -
"Judge rules, again, that blogger Crystal Cox is not a journalist. You know why? Because she ISN’T a journalist"; 
"How Crystal Cox is helping to prove the strength of the First Amendment"

Simple Justice [Scott Greenfield] -
"A Blogger Not Like Us"

Popehat [Ken-at-Popehat] -
"'Investigative Journalist' Crystal Cox's Latest Target: An Enemy's Three-Year-Old Daughter"; 
"For Plagiarists, The Internet Is A Double-Edged Sword";
"In Which I Dare Connecticut To Come Get Me. COME AT ME, BRO."

Philly Law Blog [Jordan Rushie] -
"Crystal Cox – Investigative Blogger? No, More Like A Scammer and Extortionist"

Defending People [Mark Bennett] -
"Crystal Cox"

Abnormal Use [Nick Farr] -
"Philip Morris Not Liable for Fire Started by Cigarette"

Jonathan Turley -
"Pinch Me: First Truck Spills Millions of Coins All Over Highway, Second Truck Covers The Money In Candy . . . Men Wait Anxiously For Moosehead Beer Truck"

Overlawyered [Walter Olson] - 
"Woman Blames McDonald's for Prostitution"

The Trial Warrior Blog [Antonin Pribetic] -
"Supreme Court of Canada: Canadian lawyers must turn the other cheek when bench slapped"

Concurring Opinions [Nathan Cortez] - 
"Why Can’t We Analogize the Mandate?"

Criminal Defense [Brian Tannebaum] -
"Wanna Get Famous Off Trayvon Martin?"

A Georgia Lawyer -
"A New One: 'Cosmeceuticals'"

Infamy or Praise [Colin Samuels] -
"George Rises (and Falls)"

The Art Law Blog [Donn Zaretsky] -
"Remember when I asked how long it would be before a gallery signed him up?"

Charon QC -

The Modern Major General by Bab (aka WS Gilbert)
Tomorrow [April 2, 2012] BLAWG REVIEW #315 will be hosted at my law and insurance blog, Declarations and Exclusions. Please drop in and sample the wares on offer.

[Update 4/2/12: Blawg Review #315 is up and readable here.]

Blawg Review has information about next week's host, future hosts, how you too can become a host, and instructions on how to get your own blawg posts considered in upcoming editions.


Blawg Review #305

Trial by jury 1


Yes, friends, it's Blawg Review #305, appearing several days ahead of its typical Monday schedule so that I may continue the Tradition (Tradition!), observed in four of the previous five years, of hosting an April Fools' Blawg Review installment here in the forest.  Note, if you have not already, that since this past Monday I have been hosting Blawg Review #304 at my oft-neglected legal blog, Declarations & Exclusions.

For this year's April Fools' theme I turn to a true connoisseur of human folly, William Schwenk Gilbert, the "Gilbert" of Gilbert & Sullivan fame.  W. S. Gilbert knew something of the Law at first hand: as a young man, before finding success first as an author of light verse and then as the authoring and directing half of one of the more successful theatrical duos of all time, Gilbert attempted a career as a barrister in London's Inner Temple.  He was not a success.  Indeed, it is reported that in the course of a year a mere five clients came his way.  We pause at this juncture to shed a tear of solidarity.

Gilbert's fortunes improved when, under the pen name "Bab," he began writing and illustrating humorous verse for magazines. Those poems came to be known as the "Bab Ballads."  The illustration atop this post accompanied "Trial by Jury," the tale of a suit for breach of promise to marry in which the judge does equity by wedding the jilted bride himself.  That ballad was ultimately expanded to a full one-act operetta, marking the first successful collaboration between Gilbert and composer Arthur Sullivan, with whom his name is now forever linked.

Of the fourteen major collaborations between Gilbert and Sullivan, the longest-lasting is The Mikado, which continues to receive performances the world over on a near daily basis.  The creation of The Mikado was the subject of Mike Leigh's Academy-nominated 1999 film, Topsy-Turvy, which is perhaps the best ever made on the subject of how the creative process in the theater really works.

Ko-Ko by Bab
Although it is ostensibly set in distant and exotic Japan, in the town of [ha ha!] Titipu, the only things actually Japanese about The Mikado are the costumes and, particularly in Sullivan's Overture, some of the music.  Otherwise, it is a resolutely English piece, poking fun at resolutely English targets.

To summarize, insofar as the plot is relevant to our business here today: The Mikado (Emperor) of Japan is of a particularly bloodthirsty disposition, criminalizing all manner of innocent activity and declaring most crimes to be punishable by death.  Not so bloodthirsty themselves, the citizens of Titipu hit upon the idea that the next person set for execution should himself be appointed Lord High Executioner.  Since his first order of business will be to behead himself, it is unlikely sentence will be carried out.  The title and responsibility thus fall to Ko-Ko, a poor tailor languishing in the county gaol awaiting execution for the now-illegal act of flirting. Released and elevated, Ko-Ko promises the populace that should he ever be called upon actually to execute an execution, he has in mind many potential recipients of that service other than himself. So well prepared is he for this eventuality that He's Got a Little List!  And he will share it with us, in song.

Gilbert's original lyric begins:

As some day it may happen that a victim must be

I've got a little list — I've got a little list
Of society offenders who might well be underground,
And who never would be missed — who never would
  be missed!

There's the pestilential nuisances who write for
  autographs —
All people who have flabby hands and irritating
  laughs —

And so on from there.  

The Little List is a catalog of prejudices and dislikes—including some unpleasantly hostile attitudes, probably Gilbert's own, toward non-white persons ("the banjo-serenader and others of his race" [the original-original line is actually worse]) and the female sex ("the lady from the provinces, who dresses like a guy,/ And who 'doesn't think she dances, but would rather like to try';/ And that singular anomaly, the lady novelist...")—none of whom, we are assured, will be missed.   

In Gilbert's last verse, he targets politicians "of a compromising kind."  Perhaps in consideration of the notoriously onerous English libel laws, he names no names (referring instead to "What d'ye call him — Thing'em-bob, and likewise — Never-mind") but it became traditional from virtually the first performance of The Mikado that, by appropriate gesture and mime, the actor portraying Ko-Ko could convey precisely which well-known statesmen were intended to be tweaked.  

That little trick, and the passage of years, led to the other grand tradition of the Little List: it is now almost always performed with extensive revision so as to target the irritants particular to the time and place of the performance.  It is not unknown for new verses to be crafted immediately before curtain time: since Ko-Ko is reading from his List, memorization is not a problem.  When the English National Opera revived The Mikado in a Jonathan Miller production (shifted to the 1920s), Eric Idle of Monty Python's Flying Circus took the role of Ko-Ko, and his cheeky nightly updatings of the Little List became somewhat notorious.  Richard Suart, who has since played the role many times in revivals of that same production, produced a book in 2008 (They'd None of 'em Be Missed) compiling a remarkable number of updated, topical Lists.

As you will have guessed from this prolix introduction, this year's April Fools' Blawg Review is centered around my own attempt at a blawgophile version of The Little List.  I present it below, followed by a selection of links directing you to properly foolish or eyebrow-raising legal items from 'round the sphere o' blawgs.

(If you find my version of Gilbert's lyric at all amusing, you might also enjoy my prior attempt at a topical rewriting of Victorian light verse, inspired by the 2010 BP oil disaster in the Gulf of Mexico: "The Walrus and the Petrol-Man.")


For those not familiar with Sullivan's tune for Ko-Ko's song, there is a cheesy MIDI version here.  Note that the lyrical revision below runs one verse longer than Gilbert's original, so the MIDI will run out before the verses do.  (The MIDI version also slows, as the singer typically does, during the political "What d'ye call him" section of Verse 3.)

Or perhaps you would prefer first to hear it sung by a professional?  There is a surprising dearth of satisfactory in-context versions of the Little List on the YouTubes, so instead I offer this performance by the fine English baritone Sir Thomas Allen (seen very recently in these parts), recorded at the closing BBC Proms concert at the Royal Albert Holes Hall in 2004.  Sir Thomas milks it more than somewhat, as the occasion requires, but his version strikes a reasonable balance between Gilbert's original verses and new, topical ones—to the extent Walkman jokes were still "topical" three years post-iPod—by Kit Hesketh-Harvey:


George Grossmith as Ko-KoGeorge Grossmith, the original Ko-Ko

And so, to our own special Blawg Reviewing Little List.  I might manage a passable rendition of this myself, but the lack of proper recording equipment spares us all the experiment.  Instead, in concluding this introduction, I shall simply join with Ko-Ko himself in declaring:

"I can only trust that by strict attention to duty I shall ensure a continuance of those favours which it will ever be my study to deserve."


(This Blawg Review Has) Got a Little List

On April Fools' it happens that some targets must be
I've got a little list! I've got a little list
Of law-related nuisances we wish were not around
And who never would be missed — they never would be 

There's law school grads whose sole concern is paying 
  student loans,

And members of the slackoisie who will not grow
  some stones,

And haughty law professors who don't practice, only

And excise practicality from everything they teach,
And let employers do the job for which their schools
They'd none of 'em be missed — no, they'd none of
  'em be missed!

    He's got 'em on the list — he's got 'em on the list,
    And they'll none of 'em be missed — they'll none
      of 'em be missed.

Those copyright "defenders" who write rudely to

You cease and you desist — I've got them on my list!
All the Constitution-shredding prosecutors 'cross
  the land,

I'm sure that you'll insist I put them on my list.

There's the Legal Biz consultant and his jargon-
  spewing kind

Like You Know Who, and Wotsername, and –
  hang it! Never mind --

Who claim fat fees to tell you how to stand out in the

But haven't got a clue because their heads are up
  their Cloud.
And let us not forget the "legal thriller" novelist.
He'll surely not be missed — they'd none of 'em be

    He's got 'em on the list — he's got 'em on the list,
    And they'll none of 'em be missed — they'll none
      of 'em be missed.

Those advocates who haven't got the sense God gave
  a rock

Are roundly to be hissed — I'll add them to my list.
And lawyers who are "Outraged!" or "Offended!" or
  "In shock!"

They'd none of 'em be missed — no, they'd none of
  'em be missed!

There's legislators, regulators, monitors and such
Who claim that they know secrets and that you're just
  out of touch,

And those who cite your "safety" as they strip you of
  your rights

Or ban your toys and food and drink and
  incandescent lights.

I won't forget the talking heads and "legal analysts."
They all go on the list, as they'll none of 'em be

    They all go on the list — they all go on the list,
    And they'll none of 'em be missed — they'll none
      of 'em be missed.

Don't claim to be "aggressive" when you're really just
  a jerk —

I'll slap you on the wrist, and add you to my list — 
And don't suggest that Twitter is a substitute for
  work —

At you I shake my fist, and now you're on my list

With the fellow who surrounds himself with all the
  latest "Tech"

And bloviates about it 'til you want to wring his neck —
And everyone who's "passionate" while really doing
  squat —

And anyone proclaiming he's an expert when he's not.
And I, a fool who plays the part of rhyming satirist?
We'll none of us be missed — no, we'll none of us
  be missed!


George Grossmith as the Lord Chancellor in 'Iolanthe'George Grossmith as the Lord Chancellor in Iolanthe

"The Law is the true embodiment of everything that's excellent."

"When everyone is somebody, then no one's anybody." — W.S. Gilbert, from The Gondoliers, oft-cited (as in the linked case) at What About Clients?


Links, then— You'll be wanting links, this being a Blawg Review and all.  Let me see what can be done, shall I?  Yes, yes, we have some fine links here.  An assemblage of legal blogging from hither and thither, showing grace, oddity, quiddity, variety, and epiphany.  See which of the themes from our Little List re-echo through the slightly Longer List below:

Blawg Review hosts do not often get the chance to cite Access Hollywood, but where else will you learn that Judge Judy was hospitalized, but got better?

They banned the toys in Happy Meals, what more do you want? San Francisco's rather unsavory Tenderloin district seems somehow aptly named, but the upright citizens with PETA are not satisfied.  They are proposing that the City—which has only a Temporary Mayor at the moment—should rechristen the Tenderloin to honor textured soy products.

At his California Appellate Report blog, Prof. Shaun Martin proposes a useful predictive tool in litigation: "Whoever attempts to file a proposed pleading in excess of a full ream of paper will lose the lawsuit."  Make a note: valuable safety tip.

If Washington University Law's Brian Tamanaha suddenly vanishes mysteriously, it may be because he has been spilling the beans about the supposed "selfessness" of law professors.

  • Caution— The preceding post contains this disturbing admission by the former president of the Association of American Law Schools:

   "Lawyers are not 'produced' or even 'trained' by law schools."  

The AALS—which sounds rather like one of those wicked "special interests" we are always hearing about—appears to believe that this is a good thing.  

Did you see where the American Bar Association—yet another special interest group—after close examination of the evidence, concluded that personal referrals and recommendations from people who actually know something about a lawyer are far more likely to drive business to that lawyer than, say, a blog (even a good one) or social media?  And did you see where a lot of people professed surprise at what strikes this blogger as pretty obvious? Let it be duly writ down that Scott Greenfield was not to be counted among the surprised.

Even the jaded souls at Above the Law were amazed by the ghoulish bad taste and the abuse of firefighters and of Photoshop evidenced in one law firm's recent advert.

Brian Tannebaum, with the tactful and gentle demeanor for which he is beloved, calmly and carefully gnaws down to the root of things, spits it out, and explains yet again that The Real Problem With Lawyers is Pure Stupidity.

In a development that should please art fanciers everywhere, it seems our very own Los Angeles County Museum of Art is beating the devil and slaying zombie copyrights.

James Joyce is dead, his troubles are over.  Not so the troubles of certain clever researchers who encoded 14 nearly-coherent words from Finnegans Wake on to a strand of DNA and are now, per Overlawyeredhearing about it from the Joyce estate's lawyers.  (More at The Art Law Blog.  I ventured into the metaphysics of it all via Twitter here.)  The Joyce estate is notoriously touchy about these things, to the extent that Ohio State University publishes a set of Frequently Asked Questions on dealing with them.  [h/t the Twitter feed of @AntoninPribetic.]

  • Gilbert and Sullivan, by the way—and particularly Gilbert—were extremely protective of their copyrights, particularly when their first big hit, H.M.S. Pinafore was the subject of multiple unauthorized U.S. productions before their own could be brought from London.  Through the efforts of their producer, impresario Richard D'Oyly Carte, those copyrights were kept alive until 1961.  Parliament even considered, but rejected, a further extension specific to Gilbert and Sullivan, given the operas' "national treasure" status.  More on the legal aspects of the Savoyard legacy, here.

You know how they say an attorney who represents himself has a fool for a client?  Apparently, that rule makes no exception for Harvard grads.  [also via Above the Law.]  Remember, kids: if the case isn't about your 75-pound Labrador, there is little to be gained by submitting his vet bills as exhibits.

Even if your Lab is not involved, howz you doin' at getting your exhibits admitted effectively at trial?  It's not Rocket Science, you know.  It's Magic.  [via, unnaturally, the Law and Magic Blog.]

And speaking of cute li'l doggies: Michigan liquor authorities express fear and loathing over a Ralph Steadman-designed label for "Raging B*tch" Belgian-style India Pale Ale.  [Legal Blog Watch]

New Horizons in Business: Florida legislator suggests women should incorporate their lady parts to avoid intrusive regulation, is reproved for use of real names of things.

Perhaps you have no higher goal in life than maximizing your following on Twitter?  Then you might be just the sort of gullible sap who would listen to a self- styled "social media scientist" advising you how to do it.  "Social media science,"  we should note, bears about the same relationship to actual Science as "science fiction" does.

You want fiction?  Try this on for size: "Three Law-Related Dramas Win Peabody Awards."  [Law and Humanities Blog]

This being April Fools' Day, you will perhaps be thinking of some sly prank or other to inflict upon with which to contribute to the innocent merriment those around you.  You know, stuff like this.  If your roguish japery includes, say, the use of the public airwaves, the Broadcast Law Blog reminds you to please be sure to clear it first with the FCC.

You might also take steps to contain the mirth a bit in the workplace.  [Manpower Blog]

More workplace fun via Lowering the Bar: "The employee was horrified at the possibility of wearing the chicken head. . . ."

Of course you realize this means war!  [An Associate's Mind]

Or it may just be the end of the world as we know it.  [Legal Antics]

In any event, we don't need another hero.  [Southern Lawyer NC]

Memories, via @gapingvoid.

Lord Chancellor and two of his wards by WS Gilbert


This April Fools' edition marks the tenth occasion on which it has been my pleasure to host an installment of Blawg Review. Thanks once again to the Anonymous Editor, and other supporters of this and previous editions.  

As Futures will do, the Future of Blawg Review has shrouded itself in mystery.  Should it turn out that the post you are reading is the Last Blawg Review Ever, it is my hope that you will agree with me that, unlike the denizens of our Little List, the institution of Blawg Review assuredly will be missed.

Keep your heads, and good blawgs to you.


Blawg Review is Preparing For Its Encore

Curtains for you - scarlet

What lies behind the the scarlet curtains?  

The return, to these pages, of Blawg Review, the blog carnival for lawyers and everyone interested in the law.

Please join a fool in the forest on Monday, April 4, 2011, for Blawg Review #305.  

This will mark the fourth Blawg Review excursion in the past five years for this blog.  In keeping with tradition, edition #304 is even now completing its sucessful tour of the provinces on my legal blog, Declarations & Exclusions.

As always when hosting Blawg Review, I welcome submissions of the best, most intriguing, most noteworthy law-related blog posts of this week, to be considered for inclusion in BR #305. Submissions may be directed via email to [email protected], or through the Blawg Review submissions page.  Detailed information on submission guidelines can be found here.  

As I have noted at the conclusion of BR #304, I have a particular interest at this time in "blog posts that examine, or that exemplify, Things That the Law, or Lawyers, Could Do Without."  My purpose in making this request I shall reveal in time.

Thank you, and good blawgs to you.


The Bar Association of Abalone, Arizona

El Circo del Dr Lao

    A man of many artifical parts was Lawyer Frank Tull.  His teeth had been fashioned for him and fitted to his jaws by a doctor of dental surgery.  His eyes, weak and wretched, saw the world through bifocal lenses, so distorted that only through them could the distortion of Frank's own eyes perceive things aright.  He had a silver plate in his skull to guard a hole from which a brain tumor had been removed.  One of his legs was made of metal and fiber; it took the place of the flesh-and-blood leg his mother had given him in her womb.  Around his belly was an apparatus that fitted mouth-like over his double hernia and prevented his guts from falling out.  A suspensory kept his scrotum from dangling unduly.  In his left arm a platinum wire took the place of the humerus.  Once every alternating week he went to the clinic and was injected either with salvarsan or mercury according to the antepenultimate week's dose to prevent the Spirochæta pallida from holding too much power over his soul.  Odd times he suffered prostate massages and subjected himself to deep irrigations to rectify another chronic fault in his machinery. Now and then to keep his good one going, they falttened his rotten lung with gas.  On one ear was strapped an arrangement designed to make ordinary sounds more audible.  In the shoe of his good foot an arch supporter kept that foot from splaying out.  A wig covered the silver plate in his skull.  His tonsils had been taken from him, and so had his appendix and his adenoids.  Stones had been carved from his gall, and a cancer burnt from his nose.  His piles had been removed, and water had been drained from his knee.  Sometimes they fed him with enemas; and they punched a hole in his throat so he could breathe when his noseholes clogged.  He carried his head in a steel brace, for his neck was broken; currently also his toenails ingrew.  As a member of the finest species life had yet produced he could not wrest a living from the plants of the field, nor could he compete with the beasts thereof.  As a member of the society into which he had been born he was respected and taken care of and lived on, surviving, no doubt, because he was fit.  He was a husband but not a father, a married man but not a lover.  One hundred years after he died they opened up his coffin.  All they found were strings and wires.
    He parked his car, got out of it, and walked across the street to the circus to look at its freaks.

Charles G. Finney, The Circus of Dr. Lao (1935).


A Museum is Like a Fish

The Turks have a homely proverb applied on such occasions: they say 'the fish stinks first at the head', meaning, that if the servant is disorderly, it is because the master is so.
—Sir James Porter, Observations on the Religion, Law,
   Government, and Manners of the Turks

Life and Death in a Parking Lot by laszlo-photo

This post is a continuation or further update of my previous post on the near-instantaneous removal by Los Angeles' Museum of Contemporary Art (MOCA) of the mural it had itself commissioned from the Italian street artist, BLU.  We rejoin our story, already in progress . . . .

MOCA was initially surprisingly reticent in explaining what had occurred and why.  In particular, even after the museum eventually issued a statement, there was no clear indication of the extent if any to which the decision lay with art-dealer-turned-MOCA-Director, Jeffrey Deitch, the ostensible moving force behind MOCA's upcoming exhibition devoted to street art.

The Los Angeles Times has now filled some of the gaps in an article by Jori Finkel, who interviewed Deitch by phone.  Deitch is quick to claim complete credit or blame for the decision to paint over the work even before the artist's own paint had a chance to dry:

'This is 100% about my effort to be a good, responsible, respectful neighbor in this historic community,' Deitch said. 'Out of respect for someone who is suffering from lung cancer, you don't sit in front of them and start chain smoking.'  
He rejects the talk of censorship.  'This doesn't compare to David Wojnarowicz.  This shouldn't be blown up into something larger than it is,' he says, describing a curator's prerogative to pick and choose what goes into a show. 'Every aspect of the show involves a very considered discussion.'
The unfortunate thing, he acknowledges, was the timing, as the artist began the mural while Deitch was out of town earlier this month for the art fair in Miami. . . .
When he returned from Miami and saw the mural, then more than halfway completed, Deitch said he made the decision to remove it very quickly, unprompted by complaints.  'There were zero complaints, because I took care of it right away.' He asked Blu to finish the work so it could be documented as part of the exhibition and appear in the accompanying catalog.

So, unlike Smithsonian Secretary G. Wayne Clough who crumbled precipitously when Republican lawmakers looked meaningfully in his general direction, Jeffrey Deitch proudly declares himself the sort of visionary cultural leader who succumbs to pressure even when none is applied.  That he had the artist finish the work so that it might be "documented" at the moment of its destruction is almost too much.

Deitch is right about one thing: this is not censorship in the usual sense. Censorship at least has the courage of the censor's misguided authoritarian convictions.  This is merely unprincipled cowardice, with a soupçon of vandalism.  

Deitch's apologia confirms that for him market forces and the concomitant desire to be popular and well-liked trump any other concern.  Sad, particularly for the museum he is tasked to lead.

The artist's blog for today (14 December) features a new photo of the whitewashed wall, and this comment:

this time news are going faster than my blog
i will make a short resume:

1. Moca asks me to paint a mural
2. I go to L.A. to paint the piece and I almost finish it
3. the Moca director decides to erase the wall
4. on the next day the mural is erased by Moca workers

5. journalists are still not sure if this can be called censorship
so they start asking my opinion about that

more photos and updates soon…

Still unanswered: What rights does the artist have, or will the artist choose to assert, under California's Art Preservation Act?  Did the unfinished mural qualify as "fine art" under the statutory definition?

“Fine art” means an original painting, sculpture, or drawing, or an original work of art in glass, of recognized quality, but shall not include work prepared under contract for commercial use by its purchaser.

Can MOCA assert that it had "purchased" the uncompleted work "for commercial use" rather than gratia artis (for art's sake), so that the mural is not to be deemed "fine art"?  And if not, how do Deitch and MOCA avoid culpability under the statute's broad prohibitory language?

No person, except an artist who owns and possesses a work of fine art which the artist has created, shall intentionally commit, or authorize the intentional commission of, any physical defacement, mutilation, alteration, or destruction of a work of fine art.

Let the lawyering-up begin.


UPDATEs 1129 & 1156 PST: The Los Angeles Times did not have a direct response from the artist when it published Jori Finkel's piece linked above. Now they do:

It is censorship that almost turned into self-censorship when they asked me to openly agree with their decision to erase the wall.  In Soviet Union they were calling it 'self-criticism.'
Deitch invited me to paint another mural over the one he erased, and I will not do that.

The new LAT post also includes the best photo I have yet seen of Blu's mural in its most-completed state.  The photo is credited to MOCA, so it is presumably a part of the Director's promised "documentation" of the work.

And Christopher Knight has more to say, including a retrospective look at the last time a wall of the same building caused a kerfuffle.


UPDATE 121610:  Apparently, "curatorial choice" is the flag being flown by Jeffrey Deitch and those who would justify his mishandling of this case.  As Hrag Vartanian reports at Hyperallergic the artist, in a further update to his own blog, begs to differ.

Hyperallergic has also posted a very good overview of the artist and the context of this mural within his work to date.


Photo: "Life and Death in a Parking Lot" by Flickr user laszlo-photo, used under Creative Commons license.


Go with the Flau


Soyez réglé dans votre vie et ordinaire
comme un bourgeois, afin d'être violent
et original dans vos œuvres.

["Be regular and orderly in your life,
so that you may be violent and original
in your work."]

        — Gustave Flaubert, Letter to Gertrude Tennant, 25 Decembre 1876.

That Flaubert quotation came to my attention via a comment attached to a post by Amber Sparks—"Get Jobs In Offices and Wake Up for the Morning Commute: Stevens, Poet and Insurance Exec"—part of the week-long tribute to Wallace Stevens at Big Other.  Sparks' brief piece aims at one of the points that has always added to Stevens' appeal for me: the fact that throughout most of his career as a poet, Stevens was a well-respected, very successful attorney-executive with The Hartford Accident and Indemnity Company.  

Stevens kept his life as poet and his life as insurance man largely separate from one another: when Stevens died in 1955, there were co-workers who had toiled beside him for years at The Hartford who were astonished to learn for the first time, from tributes in the press, that Stevens had been a poet at all.  Legend has it that Stevens would compose poems in his head on the way to the office, dictate rough versions to his secretary, go though his day dealing with surety issues—surety bonds being among the least "poetic" insurance products I know—and revise his work in his head on the way home.  

Dana Gioia, in his essay on "Business and Poetry," maintains that having a firm grounding in a "real world" professional position as Stevens did—and as Eliot did during his time as a London banker—is actively advantageous to the poet or other artist even, or particularly, when his or her artistic concerns are entirely removed from practical business concerns.

Wallace Stevens' version of "work-life balance"—if such a concept ever entered his mind—apparently meant being fully invested in his profession, his art, and his personal life at all times, regardless of which of the three he was attending to at any given moment.  He was well read in several languages, so I suspect that he knew of, and likely endorsed, Flaubert's sentiment, although Flaubert himself was never one for actually Getting a Job. Flaubert recommends being like a bourgeois, rather than actually being bourgeois; Stevens one-ups the French master, and demonstrated convincingly that the proper combination of attitude and skill permits a life of equal service to Mammon and the Muses. 


Illustration:  Wallace Stevens—looking rather more like W.C. Fields than he did in life—as drawn by David Hockney, for The Blue Guitar: Etchings by David Hockney Who Was Inspired by Wallace Stevens Who Was Inspired by Pablo Picasso (1977), of which more here.

A tip of the cap and bells is owing to Evan Schaeffer for pointing out the Big Other Stevens Fest, which is well worth a browse.


Drive-In Saturday:
Let's See SCOTUSBlog Post This One!


It is certainly true that SCOTUSBlog is the Blogospheric Go-to Resource for all things U.S.-Supreme-Courtian.

And yet . . . .even that worthy site has thus far declined to Rip the Proverbial Lid off of the Literal Scandal that is:

June Crenshaw: Sex Kitten to the Supreme Court

This lost, albeit scandalous, cinematic record of High Jinks at the High Court has at last, as it must in a Republic founded upon Principles to Be Named Later, come to light.  All credit is due here to the painstaking researches of playwright/screenwriter/connoisseur of the tastefully if tackily erotic, David Mamet, and his Circle.

Judge, so to speak, for yourselves:

Thorough and diligent Advocates will study this primary document closely, gleaning invaluable, nay, indispensable, well nigh irreplaceable, and simply irresistible insights into jurisprudence and judicial history, into Dred Scott and dishabille, and into the myriad varieties of Court-packing contemplated at one time or another by the Roosevelt administration.

How comforting to know that this material is certifiably, indeed certiorarically, Safe for Most Workplaces, so that it may be scrutinized at length and at leisure.  Continuing Legal Education credit has been applied for.


Cross-posted from Declarations and Exclusions.


The Curious Case of the King of the Bush
and the Working Men

Here is a jolly little tune well known to those of a certain age who consumed mass quantities of radio or of MTV or of VH1 in and around 1983.   Yes, it's the song that introduced the United States to the arcane substance known as Vegemite, Men at Work's "Down Under":

Now, having grown up in a household with two generations of Girls Scouts living in it, I noted on my first or second listen to the song almost thirty years ago that its distinctive flute part includes a dozen or so notes that quote directly from another song, "Kookaburra (Sits in the Old Gum Tree)".  "Kookaburra" is the Second Most Australian Song on Earth, surpassed only by "Waltzing Matilda," so the inclusion of a reference to it in "Down Under" -- a song that is itself all about Things Australian, about how the world perceives Things Australian and how Australians perceive and present themselves -- makes perfect sense.

To refresh the recollection of anyone who hasn't heard it for a while, here is a performance of "Kookaburra."  This version is slightly unusual in that it is sung as a solo: the song is more commonly sung as a round, by groups of Girl Scouts or schoolchildren or similar nice young persons.  The portion of the melody that recurs in "Down Under" comes just prior to the first round of applause in this video:

The incorporation of the "Kookaburra" tune into "Down Under" was always so obvious and so thematically appropriate that it never occurred to me to think that the Kookaburra bits didn't belong.  If I had thought about it -- which I confess I never did -- I would have assumed either that the Kookaburra song is an anonymous, traditional piece from the public domain, or that the snippet used by Men at Work was so brief as to constitute a permissible "fair use", or that the band had obtained permission before using it.  And I would have been wrong.

It turns out that "Kookaburra" was only written in 1935, that it has a perfectly identifiable author (Marion Sinclair, a teacher who wrote it for a troop of Girl Guides [Aussie Girl Scouts]), that it remains protected by copyright and that its copyright is now held by a publishing company, Larrikin Music.  Larrikin brought suit against songwriters Colin Hay and Ron Strykert of Men at Work and against the band's record companies for copyright infringement, after the connection between the two songs was pointed out in a question on a television quiz show.  This past week, Larrikin prevailed:

'I have come to the view that the flute riff in ''Down Under'' ... infringes on the copyright of Kookaburra because it replicates in material form a substantial part of Ms. Sinclair's 1935 work,' [Australian] Federal Court Justice Peter Jacobson said. 
He ordered the parties back in court Feb. 25 to discuss the compensation Larrikin should receive from songwriters Colin Hay and Ron Strykert and Men at Work's record companies Sony BMG Music Entertainment and EMI Songs Australia. 
Adam Simpson, Larrikin Music's lawyer, said outside court the company might seek up to 60 percent of the royalties ''Down Under'' earned since its release -- an amount that could total millions.

The ruling seems an odd one given that the quote from Kookaburra is at the same time obvious and trivial.  If the case were tried under U.S. copyright law, I would have to give good odds on the success of a defense based on Fair Use.  (See, e.g., the 2 Live Crew case, Campbell v. Acuff-Rose Music.)  

Hay and Strykert have never claimed that piece of the song as their own original work, and this is not a case of "subconscious" plagiarism as famously occurred in the case of George Harrison's reinvention of The Chiffons' "She's So Fine" as "My Sweet Lord."  In fact, it seems Hay and Strykert didn't even include the Kookaburra bit in their song as written. The offending notes were inserted while the song was being recorded, by flute player Greg Ham, much as a jazz player might include a reference to Song B while soloing on Song A.  From an Australian television report:

Colin Hay, the lead singer of Men at Work says he's very disappointed by the result. 
COLIN HAY: It has some pretty serious, you know, possibly some pretty serious financial repercussions. 
SARAH DINGLE: He doesn't deny that the flautist Greg Ham used two bars of 'Kookaburra', but he says that addition came after the original song was composed. 
COLIN HAY: When it was written, there was no band, there was no Men at Work, and so there was no flute in the band at all, and so when you talk about Down Under that's what Down Under is to me.  I'll go to my grave knowing Down Under is an original piece of work, when I wrote that with Ron, we took nothing from anybody and it was one of those, it was an accident that, it was a musical accident that happened.
No actual kookaburras could be reached for comment, as they were too busy engaging in howls of derisive laughter at these litigious humans.


Cross-posted to Declarations & Exclusions.


Rights? Quite Right!

Bill of Rights mini Today is Bill of Rights Day, acknowledging the ratification and adoption of the first ten amendments to the U.S. Constitution on December 15, 1791.

Bill of Rights Day was reputedly first proclaimed by President Franklin Roosevelt in 1941, on the Bill's 150th anniversary.  President Obama opted this year for an omnibus proclamation, including Bill of Rights Day in a package with Human Rights Day and Human Rights Week.

Tim Lynch, of the Cato Institute, takes stock and finds many of our enumerated Rights honored more in the breach than in th'observance in these times.  

Google, meanwhile, goes its own way and takes the occasion to honor LL Zamenhof, the deviser of Esperanto, on its home page, drawing the sort of unreasonable ire that only the Internet -- and rights of free expression! in the language of your choice! -- can generate.

The Presidential proclamation urges us all "to mark these observances with appropriate ceremonies and activities."   I recommend that you exercise your unenumerated right -- it is in the penumbra of one or another of The First Ten, I am quite sure -- to take five minutes from your day to observe and to meditate upon this stately, silent, kaleidoscopic and slightly trippy visual tribute, by Philip Bell

The Illustrated Bill of Rights from Philip Bell on Vimeo.

[There is a great deal of detail and fine print in this video.  I strongly recommend viewing it in full-screen mode on the fullest screen you have available.]


Cross-posted to Declarations & Exclusions.


April Fool's Blawg Review Appendix 2009

Koyaanisqatsi moon by Torley

Regular readers know that it was inevitable.  If this is April 1st -- and it is! -- then it follows as the night the day that it must be time, for the fourth consecutive year, for a fool in the forest to host an April Fool's "extra" edition of Blawg Review, the weekly blog carnival for everyone interested in the law.  I will get to a selection of the past week's more eccentric or amusing legal blog posts below.  First, however, in an admittedly self-indulgent spirit, I need to announce and over-illustrate the ostensible theme for this year's April Fool's Day appendix.

Blawg Review #205 made its appearance on Monday of this week at my more purely legal blog, Declarations & Exclusions, and was constructed around the themes and music of Gustav Holst's orchestral suite, The Planets.  Having paid tribute to the Sun's satellites, it seems only proper to theme this Appendix around we Earthlings' very own satellite, the heavenly body most associated with folly: The Moon.

For the sake of convenience, and because the two are sometimes difficult to distinguish in practice, I am conflating foolishness to some extent with moon-induced madness or, literally, lunacy.  Moon imagery abounds in Shakespeare's A Midsummer Night's Dream, in which Robin Goodfellow (doing business as "Puck") famously defines all human existence as the stuff of folly:

Lord, what fools these mortals be!

Here is an early educational film depicting the folly, or lunacy, of traveling to the Moon:

The Fool most associated with the Moon is Pierrot, the sad and lovelorn clown of the commedia dell'arte.  Pierrot is much smitten with the Moon, and is often depicted serenading it, as in this 19th Century French automaton:

Pierrot serenading the moon

Pierrot's particular moon madness was made the subject of a series of poems by Albert Giraud published in 1884 under the title Pierrot Lunaire (Moonstruck Pierrot).  In 1912, those poems were set to scrupulously atonal music by Arnold Schoenberg.  Schoenberg's Pierrot Lunaire is generally acknowledged to be, and is either loved or loathed as, a seminal work of 20th Century music, and continues to receive regular revivals.  Here are excerpts from a semi-staged version by the new music ensemble eighth blackbird, which is scheduled to be performed in June as part of southern California's Ojai Music Festival:

It's got no beat and you cannot dance to it.  Bug or feature?  You decide.  

But enough of these dilatory niceties: let's get to some more legal blog posts, shall we?  Indeed, we shall.

From the "If you can't say anything nice . . ." Dept.: Jodie Hill reports on a federal judge disqualified after cussing a blue streak at the litigants.

Speaking of bad language, Matthew Heller of On.Point has the scoop on a tale of fashion, celebrity and litigation sparked by vile and defamatory Twitter posts.  [Caution: contains naughty words.]

Robert "the Punisher" Ambrogi provides this piquant headline: "Lawyers, Dominatrix Whip Up Mortgage Scam."  Made even better by the first comment, which raises some delicate points of terminology.  Scott Greenfield of Simple Justice also flogged flagged this story, adding on a less lighthearted note that "it's disturbing that it takes a dominatrix before anyone shows serious interest in what went so very wrong in the real estate market, and the role played by attorneys."

Are you perhaps a law student who has lost out on a lucrative summer BigLaw clerkship in these difficult economic times?  No need to worry, reports Above the Law: Hef's still hiring.  And here's the best part: after Playboy hires you (as Walter Olson points out at Overlawyered), you can try for the real money by quitting and suing.  

Geeklawyer, after setting new standards for controversy with his distinctly prurient rendition of Blawg Review #203, offers a tawdry tale of bawdry among the barrister classes, compounded by heavy-handed self-important nincompoopery.  "Memo to idiot barristers: When you’re in a hole stop digging …"  [Caution: contains even naughtier words of such profusion and variety that it ought not to be countenanced by polite company.]

Alice in Wonderland features gardeners who are painting the roses red.  May It Please the Court, host of next week's Blawg Review #206, features the city fathers of Perris, California, who propose to spray paint the brown lawns green.  Don't it make your brown eyes blue?

Those of us as has 'em simply love our Trader Joe's Markets, but the chain is diligent in the defense of its trademarks.  Ron Coleman's Likelihood of Confusion provides the latest update as TJ's treats its opponent to the generic agony of defeat.  Oh, the ignominy of it all.

Via Overlawyerednow on display in the Sean Penn Wing of the Museum of Repeated Redundancy Museum.  

Lowering the Bar notes that the Tennessee House Judiciary Committee will hold hearings today all about saggy baggy pants.

Pants are inherently funny, right?  Well, so are bananas!  For which reason I am obliged to note the California Punitive Damages blog's perfectly serious story with the perfectly silly title: Banana Litigation Losing its Appeal?  At this rate, Curt Cutting and company will soon have to change the name of their blog to California PUNitive Damages.  Thanks, folks, I'm here all week.

Crime & Federalism knows what Twittering bloggers Twitter about: they Twitter about blogging.

The Los Angeles Times continues its obsession with "celebrity justice", on which I have remarked before.

Don't be fooled!  Michael Webster's BizOp News alerts you to the short con.

Let's Dance, Part 1: There is nothing a skillful advocate cannot do, armed with the awesome power of the First Amendment. (No sarcasm there: this fool really truly fancies the First Amendment.  Really.  I mean it.)  Legal Satyricon demonstrates, as "pole dancing" becomes "tax loophole dancing".

Let's Dance, Part 2:  Radley Balko has a copy of the complaint filed against the U.S. Park Police and the Department of the Interior by Brooke Oberwetter, who found herself arrested for the crime of dancing in the Jefferson Memorial.  The Complaint [PDF] has a fine sense of tone, featuring allegations such as:

Visitors to the Jefferson Memorial talk loudly, make noise, take and pose for photographs, and otherwise behave as though the Memorial is located in a public park -- which, of course, it is.

* * *

Plaintiff and her associates celebrated and honored Thomas Jefferson by ushering in his birthday, at the Jefferson Memorial, with dance. . . .  In the individualistic spirit for which Jefferson is known, the dancers danced for the most part by themselves, in place, each listening to his or her music on headphones.

No fooling: Rather more seriously, two items that went missing from the "official" Blawg Review #205 as I put it to bed Sunday evening:

First, CharonQC looks at the state of Justice and Liberty in the UK, notes that violence is anticipated round and about today's G20 meetings, and wonders just which side of the police line is most set on planning that violence. "Cry God for Harry, St George and England (not forgetting Wales)…"

Second, more personally, this fool wishes to note the February 28, 2009, conclusion of David Giacalone's weblog, f/k/a.  David, in his prior guise of ethicalEsq and in the mixture of haiku and punditry he posted at f/k/a, was a unique adornment to the escutcheon of legal web journals, an important influence on my own approaches to blogging over these past several years, and a welcome reader and commenter here.  For reasons sound and personal, he elected to go "cold turkey" from law and punditry blogging effective March 1, leaving the f/k/a/ archives and a final massive and thoughtful post on attorneys' fees as online legacy.  (Ah, but the haiku marches on!)

Just as I was settling in to type the preceding paragraph, what should arrive but an email from none other than the aforesaid David Giacalone, alerting a handful of his blawging compatriots to the revelation that the London Times' hitherto anonymous Baby Barista has been identified as Tim Kevan who has, poor soul, been obliged to reveal himself as a condition of landing a lucrative book deal.  I am sure that this too reflects somehow on the state of Justice in our day and age.  Thanks for the tip, Dagosan.

On that uplifting note, I leave you this fine Fool's Day with one last visit from our friend Pierrot, seen here in the blue-tinged, retro-avant garde context of Kenneth Anger's Rabbit's Moon (1950, revised 1972), of which Anger scholar Bill Landis wrote

The character Pierrot was based on [English occultist Aleister] Crowley's tarot card of the Fool, which meant divine inspiration in spiritual or creative matters, but folly, mania, or death in everyday affairs.  

Pauvre Pierrot!  Learn, friends, from his sad example.

Oh.  One more thing I almost forgot.  I have said it before and I will say it again: 

  • Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.

Good night and thank you.


Photo Credit (top): "Koyaanisqatsi Moon" by Flickr user Torley, used under Creative Commons license.