February 05, 2015
Family Film (TV) Blogging: Agents of Shield
Posted by Christine Hurt

The line between television shows and films as a form has been blurred since HBO started making movies and episodic series.  Watching the Golden Globes, I wondered whether the category "television" was now a catch-all for anything that didn't qualify as a feature film.  (Under Academy Award rules, this means over 40 minutes, shown in a particular format at a "commercial movie theater" for the first time to the public for seven consecutive days in L.A. County).  So, any "movie" that appears for the first time on pay cable, subscription cable, Netflix, Amazon, Hulu, etc. is "made-for-television," and any series appearing on similar outlets is also "television."  ABC's Agents of Shield blurs the lines even further by creating a parallel story line for a television series with a subset of the same characters undergoing a parallel story arc in the Marvel Avengers movies (the "Marvel Cinematic Universe").  Impressively, if you watched the series in real time, the events in Captain America Winter Soldier are experienced by the characters in AOS on television the week the movie is released.  That's fairly impressive.

The series premiered in September 2013, and I have to say that our family just missed it.  But recently it appeared on Netflix, and my 13 year-old and I just finished Season 2.  We agree it was worth the binge-watching!  

The series picks up after the events in the movie The Avengers -- the "Battle of New York" has taken place and the Avenger heroes are well-known and action-figured.  The events of Iron Man 3  have also taken place by the first episode, and references to events in Thor:  The Dark World appear somewhat contemporaneously with the events of that movie.  Of course, as we all know, Phil Coulson died in The Avengers, so we need a backstory to explain how he is very much alive.  This backstory will actually become the building block of the master plot of Season 1.  Unfortunately, none of the Avengers know that he is alive, so we will not see any of the six main Marvel superheroes on the show.  Other characters, Maria Hill, Nick Fury, the Asgaardian who loves Thor, and the guy who turns out to be Hydra, show up later.

The basic premise is that because of his service and death, Phil gets a tricked-out super spy plane and a sports car to use to continue S.H.I.E.L.D. operations.  He has a team that includes FitzSimmons (two genius scientists, Fitz and Simmons), a pilot/operations agent (Melinda May, a zen-like warrior), a loner operations agent (Grant Ward), and eventually a computer hacker (Skye, no last name).  They must learn how to work together as a team, blah, blah, blah.  Together, they fight various battles, including an ongoing conflict with a secret organization called Centipede financed by an evil corporation Cybertek.  Centipede is trying to create an army of super soldiers using the serum made famous in Iron Man 3.  Spoilers below.

Probably the most awesome television trick since ER broadcast live is how AOS had the events of the show's season enders parallel the rise of Hydra in Winter Soldier.  As Hydra takes over S.H.I.E.L.D. at headquarters in D.C. with only Captain America, Falcon and Black Widow to save it, Hydra takes over Coulson's plane and its other bases.  Friends we had grown to love were revealed as Hydra.  The S.H.I.E.L.D. team learns that Nick Fury has died, as per the movie.  This was pretty awesome.

We have not watched Season 2 yet, but Season 1 ends with Nick Fury leaving Coulson to rebuild S.H.I.E.L.D. from scratch.  What will be interesting is how much Avengers:  Age of Ultron will rely on viewer knowledge of the events of Season 2 as background.  The new movie will premiere around the time of the season ender, so it could be awesome if there was some dovetailing.

Obviously, demand for new content from the Marvel Cinematic Universe is almost insatiable (and not just at my house).  AOS is an ingenious way to keep fans happy in between expensive summer blockbusters.  AOS can't be a cheap show to make, though, because there are plenty of special effects.  (Though there is one flying car scene that looked like a primitive Chitty Chitty Bang Bang clip.)  All in all, we loved AOS and can't wait to watch Season 2.  Interestingly, though it is on "television," it is fairly gory -- much more like the darker Iron Man movies than the lighter Captain America ones.  

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June 06, 2013
Game of Thrones Confusion
Posted by Usha Rodrigues

I guess people can keep secrets way better than I thought.

I discovered George R.R. Martin's Song of Ice and Fire in about 2008 and devoured it despite the quality of the series diminishing markedly after the first few books.  I haven't read 2011's A Dance with Dragons yet, largely because of this sneaking suspicion.

Still, I remember them fondly.  Although I haven't been watching, I've been pleased with the fanaticism inspired by HBO's adaptation, now in its third season.  But this Sunday (spoiler alert--that is, if you haven't been on Facebook, watched the news, or talked to anyone this week--do not read further or click on the below links) something big happened at the Red Wedding.  

So I remember this scene from the books.  Vividly.  Which brings me to my confusion: how, in the modern information age, were so many people taken by surprise?  I'm genuinely curious:.  After all, as this interview with the showrunners observes, the news was "only a mouse-click away for the curious to find."  Any ideas?  

Also, you might enjoy this interview with GRRM on writing the scene.

Update:  I've enjoyed the comments, and want to clarify: what I'm confused about is why there isn't some website/general jerk out there 2 weeks ago trumpeting, "Guess what's coming?  Something bad!"  Maybe I have too dim a view of human nature.  Or maybe our newsfeeds are so fragmented now that it's easy to avoid such voices.  I guess that's what the comments suggest?  It seems so precarious to build a business around trusting that people won't give away the end or spoil it for others.  But I guess it worked.

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October 09, 2012
Forget Big Bird, What About Arthur?
Posted by Christine Hurt

Since the debate, my Facebook has been filled with status updates about fact-checking, polls and Sesame Street.  Whether Mitt Romney would kill Big Bird has become a big meme out there.  So, today I did some checking.  Don't worry about Big Bird.  Sesame Street is basically self-supporting, as any parent with Elmo DVDs, dolls, books and plastic kitchens knows.  I actually have a vintage Bert and Ernie I got at a garage sale -- not the most popular Seame Street guys now, though.  But of course Sesame Street and other popular shows get their start by getting production help from affiliate stations or PBS, which get grants from the Corporation for Public Broadcasting, a non-profit funded entirely by the federal government.  And, it's safe to say that many great shows would not get made without this type of funding.  The price tag is about $445 million a year, or (as the CPB website says, $1.35 per American), which covers all kinds of public media programming (radio and TV).

So, is it horrible for Romney to suggest cutting funding for CPB?  (I'm reminded of the great episode of West Wing in which Toby fights about this all day, loving every minute of it.)  I once heard someone say quite reasonably that our budget problems were not caused by sending malaria nets to Africa.  I guess we can add "or Sesame Street."  No, we all know what the big budget items are for the federal government and that very little can be done with the budget if those are left alone (Medicare, defense, Social Security, etc.).  But candidates aren't going to talk about cutting those things, so they will pick smaller things that might not annoy as many people, but that aren't going to amount to a lot unless you pick 1000 (or 2000 or 3000) similar things to cut.

Does the average American care about PBS?  Definitely my FB crowd seems to, if only symbolically.  Obviously, many Americans have a lot of TV/Internet/media choices when it comes to children's television, a lot more than in 1970.  Last year, the President of the Disney Channel, Carolina Lightcap (no relation to Buzz Lightyear), said that moms didn't want educational programming but instead wanted stories with social value.  This could mean several things -- they were good at teaching their little ones the alphabet and letter sounds, so maybe kids could just relax with a good story?  Hard to know, but Ms. Lightcap resigned soon after, but the social value programming is still going strong -- Jake and the Neverland Pirates, Doc McStuffins, and of course Phineas and Ferb.

OK, so I hate to say this, but I do care.  As a percentage, most of the shows we watch were funded by the government (I am the 47%).  Our kids basically watch Arthur and Phineas and Ferb, with a little Sid the Science Kid thrown in.  We love Arthur -- all of us, and how many shows are like that (well, besides Phineas and Freb).  The big kids don't watch Sid, but I wish they had when they were small -- teaching preschoolers the scientific method and empirical skills?  Without needing to read?  Wow.

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August 03, 2012
Watching the Olympics in a Post-Television World
Posted by Christine Hurt

So, one week into the 2012 Olympics, I realize that watching the Olympics is completely different now and will be even more so in the future.  In 1976, my family ate dinner (at the table, yes) quickly so we could be back in front of the TV (in the living room) by the time Nadia was up again.  Watching the Olympics was an event, like a 2-week Super Bowl, that we savored during Prime Time.  If the Olympics were half a world away, we didn't seem to notice that events we were watching may have already taken place.  Unless someone from Austria or Yugoslavia called us long-distance, we were none the wiser.  And we were sad when it ended.

In 1998, I first noticed a difference.  If you wanted to view the Nagano Olympics as an experience, you had to not listen to the radio during the day.  I was intent on having an experience one Friday night watching the women's ice skating finals.  I walled myself all day and warned everyone at my law firm not to tell me whether Michelle Kwan or Tara Lipinski won.  I settled down to takeout and ice skating, when a commercial for the local news came on:  "Stay tuned to News2 Houston after the Olympics -- Tara brings home the gold!""  My disappointment and anger knew no bounds. 

Today, it's a whole new ball game.  We all know that the London Olmpics are going on right now as I type.  Our hometown favorite Tyler McGill is swimming against Michael Phelps at about 1:30 CST.  If I wanted to make an experience out of watching the "Prime Time" broadcast, I would have to shut out all social media, my NYT email alerts, my WSJ email alerts and of course the radio.  But why would I?  I'll just watch it streaming live from my work computer (with a code from my TV content provider).  I could stream it on my phone or an iPad.  Even our Prime Time experience is eating dinner at a leisurely pace, then starting the DVR-recorded broadcast whenever we want, and fast-forwarding through commercials or commentary or boring things.

After the Olympics, we are getting rid of "television."  We aren't throwing out our actual TV, but we are terminating our content provider (Dish).  We realized we were paying ungodly sums of money basically so we could watch Phineas & Ferb any time of the day.  So, a cheap computer is now hooked up to the TV, and we are going to watch content through something called PlayOn, Roku, Netflix and Hulu.  As far as we can tell, our only sacrifice is the Super Bowl (network) and the Olympics. 

But, I think by 2014, it's a whole new game.

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June 13, 2012
I Just Found Out Dallas is Back on TV, But I'm Not Watching
Posted by Christine Hurt

So, I guess I have to admit that the summer I was eleven, I often sat around and wondered who shot J.R.  this should actually be more embarassing to my parents, who let me watch Dallas every Sunday night, but there wasn't a lot for kids to watch then, even (or especially) on cable.  I may have even had a t-shirt (custom-made at the mall) that said "I shot J.R.," or maybe I just wanted one. 

Today, the NYT has a (mostly unfavorable) review of the new Dallas show, "When Dallas Was the Capital of America."  The new show, which catches up with the second generation of Ewings, can't recapture that time, according to the article, because it doesn't exist anymore.  Interestingly, the article never mentions the Dallas Cowboys, the Dallas Cowboy cheerleaders, or Urban Cowboy.  The article describes the differences as middle-class grittiness versus modern global glitz.  The Ewings weren't jet-setters; their oil and cattle businesses were local, not global.  I take it that the new show is more Wall Street than Oil Patch. 

But more has changed than just the globalization of the oil markets.  (The author obviously never watched the show -- the show always talked about "the Cartel" and foreign oil producers appeared sporadically, but they came to Dallas.)  Dallas has changed.  Southfork, which was supposed to be "out in the country," is basically in Plano now, which is a medium-sized city.  The ranch, which is now a conference center, is surrounded by suburbs and exurbs.  I wonder now if someone early on had thought about setting Dallas in Houston, which is the actual Oil Patch, and is roughly where Urban Cowboy was set.  But the TV show was riding the wave of the Dallas Cowboys, who were America's Team (the old joke is that in the 1990s, they became America's Most Wanted.)  Both the team and the cheerleaders (who had their own made-for-TV movie) figured prominently in the opening credits.  Houston didn't sound as glamorous, I'm sure (and no one loved the Oilers much). 

I think the remake will also have to exist somehow in the shadow of the Bush family.  At the time of the first TV show, America was not that familiar with the George H.W. Bush family.  Though it was popular at the beginning of the first Reagan administration, I don't think we viewed the family as a "dynasty" until George W. Bush and Jeb Bush became governors, and then of course W became president.  Now, the show has to not be the Bush family.  Which is almost regrettable, because that could be an interesting show!

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November 04, 2011
Corporate Greed, Behavioral Economics, and Financial Regulation in the Movies and on TV
Posted by Peter Huang

An article in today's Life section of USA Today titled Movies tap into anger at Wall Street describes how 3 movies in current release mirror public angst over economic inequalities and inequities: Tower HeistIn Time, and the already mentioned in 2 Glom blogs, Margin Call.



This autumn's documentary Chasing Madoff recounts Harry Markopolos’ multi-year crusade to expose the multi-billion dollar Ponzi scheme perpetrated by Bernie Madoff. Alleged victims of this massive fraud include the celebrity couple of Kyra Sedgwick (star of The Closer on TNT) and Kevin Bacon (of the original Footloose (1984) fame). The Dodd-Frank Wall Street Reform and Consumer Protection Act included a broad set of whistleblower provisions under which the Securities and Exchange Commission adopted specific rules and procedures to incentivize potential whistleblowers by way of cash rewards and protection from retaliation.




There is also a 2009 documentary about the subprime mortgage fiasco, which is now available on DVD, American Casino. 2001 economics Nobel laureate Joseph Stigltiz described it as being "a powerful and shocking look at the subprime lending scandal. If you want to understand how the US financial system failed and how mortgage companies ripped off the poor, see this film." 


This May, the HBO Films production of Too Big to Fail, based on the book of the same name with the subtitle of The Inside Story of How Wall Street and Washington Fought to Save the Financial System--and Themselves depicted the autumn 2008 U.S. financial crisis and the sequence of (less than intertemporally consistent) policy responses by the Treasury department, the Federal Reserve, and other financial regulators.


Last autumn's Inside Job made a compelling argument in five parts about how the American financial services industry systematically and systemically corrupted the United States government and in so doing brought about changes in banking practices and legal policies that led directly to the Great Recession.


Although the documentary Client 9: The Rise and Fall of Eliot Spitzer focused primarily on the interaction of ego, hubris, power, scandal, sex, and politics, it also touched upon Wall Street and efforts by Spitzer to reform its excesses.


Of course, no list of movies related to the recent financial crises would be complete without including documentary film-maker Michael Moore's 2009, Capitalism: A Love Story, which criticizes the current American economic system in particular and capitalism in general. At one point, it asks if capitalism is a sin and whether Jesus would be a capitalist, who wanted to maximize profits, deregulate banking, and have the sick pay out of pocket for pre-existing conditions via clips from Jesus of Nazareth. Moore asks if one could patent the sun and questions how the brightest American youth are drawn towards finance and not science. He proceeds to Wall Street asking for non-technical explanations of derivative securities in general and credit default swaps in particular. Both a former vice-president of Lehman Brothers and current Harvard University economics professor Kenneth Rogoff fail to clearly explain either term. Moore thus concludes that our complex economic system and its arcane terminology exist simply to confuse people and that Wall Street effectively has a crazy casino mentality. 


Finally, the PBS Nova episode, Mind Over Money, which originally aired on April 26, 2010 asks whether markets can possibly be rational when people clearly are not. In other words, is there a version of the efficient markets hypothesis that can be true in a world populated by at least some boundedly rational actors? In posing this question, the show offers an entertaining, yet quite informative survey of elements of behavioral economics and finance. Its companion website provides additional resource materials concerning the role of emotions in financial decision-making. The debate which it depicts between the University of Chicago school of economics and the behavioral economics approach (including scenes of Dick Thaler playing pool) is a bit overdone and perhaps unintentionally comical, but it raises the question of whether it matters for law and policy how people make their financial judgments and decisions? Of course, the natural follow-ups of if so, then how and if not, then why not, are questions about which business law professors, Glom readers, and policy makers are likely to have perhaps quite strong and certainly divergent opinions.


A television program that has become quite popular is the USA network's original dramatic series White Collar, which is based upon the premise of an F.B.I. agent solving white collar crimes with the assistance of consultant who is a former (and current?) art thief and con man extraordinaire. Episodes have featured a black widow, baby selling, bank robbery, black market kidneys, bond theft, collusion, corporate espionage, derivatives, financial fraud by a Wall Street brokerage firm, identity theft, and political corruption.  


It is reminiscent of the 1960's campy, classic, and tongue-in-cheek television series, It Takes A Thief.



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January 14, 2010
Conan v. NBC: Workin’ on a Night Move
Posted by Erik Gerding

So Conan showed up for work and delivered another show last night. We shouldn’t be surprised: he needs to keep working so NBC can’t argue he breached his contract. This creates a game of chicken between the network and the comedian.

At first glance, NBC has an advantage. Conan can only control whether he tapes his show, not when NBC airs it. If Conan continues to work, NBC can just air it at 12:05, forcing Conan to either walk away or go to court and seek a declaratory judgment, possibly using doctrines like anticipatory repudiation.

As I noted in an earlier post, Conan has quite a bit of non-contractual leverage. Blogosphere opinion is mobilizing in his favor. The wackier this gets, the higher the ratings for him when he starts a new show. At the same time, NBC also has to worry about its ratings and selling its ad time while its late night line-up is in limbo. The Winter Olympics provides NBC with breathing room, but this process dragging out means NBC won’t be able to run those annoying ads that distract me from watching a little luge -- “Hey- when the Olympics are over, watch [Jay][Conan].”

For Contracts classes, this standoff is a gold mine. Teachers like Larry Cunningham are already mining it. It is a great opportunity to focus on communications and behavior in real time rather than doing an autopsy of a 50 year old case. Teachers can focus on the importance of other documents – like Conan’s letter to the people of earth – beyond the actual contract. And here’s an idea: assign your students to watch Conan’s show and watch how careful he is with his jokes. He never implies he will walk away from the job. We can differ on whether the guy is funny, but he sure is smart.

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January 13, 2010
Conan's Contract Conundrum
Posted by Erik Gerding

Why couldn't NBC have pulled this stunt with Jay Leno and Conan O'Brien while I was still teaching Contracts?  It makes for a really juicy monologue (I mean discussion) in the classroom.  According to media reports, Conan's contract with NBC specified that he would host the "Tonight Show" but didn't specify when the show would be aired every night. (Incidentally, does anyone know if the contract is floating around cyberspace?)

Now NBC wants to move his show back to 12:05 and move Leno to 11:35 to placate network affiliates who are upset with ratings.  Conan then rejected this move in a letter yesterday.

The issues -- did NBC breach the contract?  (That will be a hard argument see below

If Conan walks to Fox, is he in breach and can NBC enjoin him?  If there is a financial settlement, does NBC pay Conan, or does Conan/Fox buy Conan out of the contract?

Conan is in a pickle because allegedly the contract doesn't specify when his show is to air.  If he cared about that so much, he should have negotiated for it, particularly since there was so much drama about NBC keeping Leno on for an show earlier in the evening.  (Of course some of that drama may have unfolded after Conan signed the contract.)  On the other hand, the timing of when a show airs is everything in the t.v. business, a point Conan makes...

The one document we do have, Conan's letter to "the people of earth", makes for interesting reading in a Contracts class.  Note he doesn't threaten to leave work, which might be a breach.  Note he also talks about how NBC's move would destroy "The Tonight Show":

I sincerely believe that delaying the “Tonight Show” into the next day to accommodate another comedy program will seriously damage what I consider to be the greatest franchise in the history of broadcasting. The “Tonight Show” at 12:05 simply isn’t the “Tonight Show.”...

I cannot express in words how much I enjoy hosting this program and what an enormous personal disappointment it is for me to consider losing it. My staff and I have worked unbelievably hard, and we are very proud of our contribution to the legacy of “The Tonight Show.” But I cannot participate in what I honestly believe is its destruction. Some people will make the argument that with DVRs and the Internet, a time slot doesn’t matter. But with the “Tonight Show,” I believe nothing could matter more.

It looks like Conan had more than his jokewriters help him with this bit.  Again, note how he frames this not as him walking away, but him considering losing the show. 

The letter seems to set up an argument that NBC is not allowing him to host the "Tonight Show" because a show at 12:05 is not the "Tonight Show." 

Is there a contract law strategy behind NBC's moves?  Clearly, they aimed to keep the names of the "Jay Leno Show" and "The Tonight Show" to avoid hurting their legal position with Conan.  The timing of the shows -- at 11:35 and 12:05 -- might have been chosen to avoid moving the two performers back to the same exact slots they had before, which would help Conan's argument that NBC breached.

Conan may not have the strongest legal arguments, but he still has leverage.  Legal uncertainty hurts both parties.  A media circus on Conan's status will only help NBC's ratings for a while - they can help Conan and Fox in publicity for a lot longer.  Part of this stems from the fact that Jay Leno -- who is staying at NBC -- can't and won't milk this for laughs much longer if at all.

Will his contract lawyers now have to vet Conan's monologue? 

At the same time Conan and Fox have to do an elaborate dance to avoid looking like they are entering into direct discussions, which would give NBC a quiver of new arguments (tortious interference with contract among them).

This, as Triumph the Comic Insult Dog would say, is a great set of legal issues for me to poop on.

Addition:  One final note.  If Conan argues that "The Tonight Show" is not the "Tonight Show" he will likley need to rely on extrinsic or parol evidence to go beyond the ex plicit language of the contract to aid in contract interpretation.  If the contract is governed by California law, he is in luck, as California has traditionally been more open to parol evidence (see the famous 1968 Pacific Gas case, which is now a Contract case book staple.  You know - the one in which Justice Traynor talks about how the meaning of contract language varies with social context and in which he refers to, among other things, Swedish practices against witchcraft).  Although there are hints that California courts may be stepping away from this more loose interpretation of the parol evidence rule.  See e.g. Dore, 39 Cal.4th 384 (2006).

Another addition:  Check out Larry Cunningham's great contract analysis of this story over at Concurring Opinions:


Larry has a history of insight into high profile contracts cases; he was a frequent commentator in the press on Contract law issues when the AIG bonus issue was the hot topic.

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November 30, 2009
You’re Hired (or At Least For Now)! The Sorcerer’s Apprentice
Posted by Kristin Johnson

Last weekend, The New York Times reported that internships are again en vogue and offer a welcomed path out of the recession for many seeking to transition between careers or aiming to take advantage of employment opportunities complementary to their areas of expertise. The premise of the article seems reminiscent of an article that you may have read last summer in the National Law Journal regarding Howrey Simon’s law apprenticeship program. For better or worse, Big Law seems to be setting the business trends this time around.

The article from last summer describes Howrey Simon’s intentions to create an apprentice program for their incoming associate classes. Compared to medical residency or secondment of a young accountant at a client’s offices, the apprenticeship program intends to focus on skills developing opportunities such as legal writing and research through pro bono and similar opportunities. While seen as a maverick by some, Howrey is only breaking ground locally. Internationally, other jurisdictions already require a kind of apprenticeship. England and Wales have an article requirement and Scotland has a traineeship requirement. The idea already has a well-established track record in the Americas. In Canada, “articling” is a prerequisite to being called to the bar; bar candidates take bar exams after they  article for one year. A “principal” or admitted lawyer must agree to be responsible for an articling bar candidate’s training during the articling year. How’s that for forced bonding and mentorship! Though, in practice, bar candidates’ experiences are likely quite varied based upon the principal with whom they spend the year working.

Interestingly, articling, is a requirement of the provincial bars and offers firms an opportunity to expand the “trial period” of their courtship with bar candidates for a longer and more substantive period than the three month summer associate program common in the U.S. A bit of regulatory capture there by the bars(?)–reinforcing the notion that young lawyers are still in training and are economically less productive (and therefore, justifiably paid less, a Howrey program proponent might add).  

Three observations about the introduction of the apprenticeship model. First, the introduction of the Howrey model facilitates a broader market reversal in associate compensation and reduces the reputational threat for firms who dare allege that students who completed three years at Big Law Schools still lack lawyering skills. Cravathand others’ bonus announcements this winter parallel the $25,000 discretionary bonus described in Howrey’s apprentice program. Second, while the Howrey apprenticeship announcement every-so-carefully declared no further reductions in pay levels, I expect that we will see creative explanations regarding decisions to reduce Big Law first year salaries from their current historic high of $160,000. Third, while Gordon rightly notes the record numbers of LSAT takers in the current period, perhaps the shift in the structure of compensation and the lengthening of the timeline for eligibility for Big Law associateship (5 years if including 3 years of law school and a clerkship or two year apprenticeship at the firm) may influence, if not dissuade, future LSAT takers.

Whether or not the Howrey program represents a good business model, it's a great idea for a pilot: The Apprentice: Big Law, a reality show that depicts junior lawyers competing for a place as an associate at a large New York/Chicago/San Fran law firm. We have seen many lawyers on television and lawerly television shows, but never a survivor-for-junior-lawyers. Should I start working on the script?

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April 17, 2009
christyTV Blogging: The Biggest Loser Meets the Personal Injury Lawsuit
Posted by Christine Hurt

So, in order to write this post I have to admit that I love The Biggest Loser.  I'm fairly obsessed with it, actually.  I've never seen any of the other season-long reality shows where people get voted off, so this is my first foray into the strange game theory of the survival reality show.  This season, the contestants were in teams of two (married couples, sisters, cousins, brothers, best friends, engaged couples, parent/child teams).  The point of the show is to exercise a lot with a personal trainer and eat better in order to lose weight each week at the "weigh-in."  The people that lose the least are in jeopardy of getting voted off.  I missed the first part of the season, but by the time that I started watching how this voting off happened varied from week to week.  For awhile, the lowest couple had one of their team voted off.  Then, all couples were either on the Blue or the Black team, and the lowest losing team had to vote one of their own off.  Now, with 8 left this week, the "bigger losers" vote to decide which one of the two "lowest losers" will go home.  The last one standing wins $250k.  At this point, most of the contestants left have lost substantial amounts of weight (100-plus pounds).  The strategy is very interesting.

Anyway, this week poses some interesting Torts questions (spoiler alert below -- I know my friend Tracy McGaugh hasn't watched it yet because she's with Touro law students in NOLA, so Tracy -- stop reading.)

One of the contestants, Laura, has suffered a stress fracture in her hip.  Laura has probably lost the least weight (both absolute and as a percentage) of any of the other viable contestants; however, she was immune from elimination for awhile because she has a very strong partner and then was on the stronger team (Blue), which never lost a weigh-in.  Anyway, much of the TV time that Laura receives focuses on how lazy her trainer thinks she is.  Jillian, the trainer, yells at her and gets in her face and has her other team members tell her that she is the weakest member of their team.  When Laura says she's going to pass out or that she can't breathe, Jillian mocks her.  Jillian often tells the camera in the "monologuing sessions" that Laura obviously has some mental issues to work through.  All that being said, in the last few of the 15 weeks, Laura seems to have turned the corner.  Until this week.

Laura was found to have this stress fracture and told not to do anything that hurt.  This seemed to translate (possibly for good television) into her not walking anywhere and being carried.  So, she gained weight and was booted off my her fellow contestants who told her it was so she could go home and get well.  The host of the show told her that The Biggest Loser was not going to let her go home and face this alone -- she would receive the best doctors, etc., blah, blah, blah.

So, all of you out there thinking about writing Torts exams, is there a cause of action?  I assume that Laura will get much more out of NBC by not suing, but let's play this out.  I'm sure she signed a waiver.  Here is the short-form application with the waiver that applies to just the audition, but I also assume that there are more to be signed once you are a contestant.  And, I'm sure that Laura signed several things before she actually left the Ranch!  (Here is the American Gladiator release, which may be is drafted by the same NBC attorneys.)  Did Laura assume the risk of injury?  What if she relied on Jillian's judgment the way she would a doctor who told her something was not risky?  (I like the way page 24-25 of the AG release affirm that the contestant is solely responsible for deciding whether she is capable of any activity, and that the NBC doctors are no substitute for their own judgment, or the judgment of their own doctors (who of course aren't staying at the Ranch)). 

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October 21, 2008
The Ballad of Pinter v. Dahl - Reprise
Posted by Jeff Lipshaw

I'm pretty sure this is available somewhere in the bowels of the blogosphere, but I'm reprising it again.  As every securities lawyer and professor knows, there is a funny quirk in the "in terrorem" civil liability statute under the 1933 Securities Act for having violated Section 5 by distributing securities without either registration or an exemption from registration. 

The statute, Section 12(a)(1), gives a rescission right (or "put") to the purchaser, so for a year after the offering, if the value of the shares go down, the purchaser has the right to tender them back and get a refund of the purchase price.  The problem is that the statute makes any person who "offers or sells" in violation of Section 5 liable, but the liability extends to the person "purchasing the security from him."  In other words, there's a glitch if you try to go after somebody who merely offered rather than sold.

The Supreme Court tried to sort this out in a case called Pinter v. Dahl.  There is now a tradition in my securities regulation class where, after we study the case, I sing the following song, set to the tune of the Ballad of the Beverly Hillbillies (Flatt & Scruggs version):

Come and listen to my story bout a guy Maurice,
California boy just a-waitin’ to be fleeced.
Then one day put some money in with Bill
Out in Oklahoma where the wildcatters drill.
       Oil, that is, black gold.  Texas tea.

Well, the next thing you know Maurice is on the dole,
Askin’ lots of friends he knows to throw cash down the hole
Said Beej Pinter is the guy you wanna see
And they each put some money in without an SEC
       Filing, that is.  Form S-1.

Well, now it’s time to figure out if anyone can claim
That someone not the issuer can bear part of the blame
For selling shares unregistered with no gratuity,
To share a heapin’ helpin’ of some liability.
      Section 12(a)(1) that is.  33 Act. 

Write a check.
Y’all invest now, hear?

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September 26, 2008
ChristyTV Blogging: Grey's Anatomy
Posted by Christine Hurt

Whenever I meet new people who say that they read the blog, about half of them say they always read the Family Film Blogging entries -- who knew?  So, I thought I would start a new category:  ChristyTV Blogging.  Like everyone else, my life is so crazy this month with meetings, travel and deadlines, but I did carve out some special folding laundry time with Grey's Anatomy last night.  There were actually two things that came up during the show that I think are relevant to our discussions here on Conglomerate about law and legal education, but first the chit-chat.

I got a little tired of the "gotchas" in the 2-hour season premiere.  So all of the momentous things you thought were going to happen because of the promos were dreams (yes, just like Bobby Ewing), pranks or jokes.  Grrrr.  That got old.  Grey's has become to me like 90210 in the 1990s.  I don't like Meredith.  She's not likeable, just like Brenda.  I like Izzy, who doesn't seem to be catching much of a plot line these days.  And they keep cutting her hair.  Izzy would be gorgeous bald, but why don't we focus on her character development and not so much on her hair?  But the burning question for me is whether Kevin McKidd (remember Rome and Journeyman, the show the writer's strike killed?) is going to be a regular character.  Kevin McKidd is just like a TV-version of Daniel Craig for me, and well, I won't say anything more because I know that my husband reads the blog, but I have yet to meet a woman who has seen Casino Royale who doesn't feel the same way.

OK, back to the issues.  So, the show opens with Seattle Grace angsting about rankings!  So, in the world of teaching hospitals, their surgical program fell from 2nd place to 12th.  Yikes!  And that sent them from being a Trauma I hospital to a Trauma II.  Now, I know nothing about medical schools, hospitals, or teaching hospitals, but I thought this was a fascinating choice for a plot line.  Also, as a reaction to a fall in the rankings, the chief chose to focus on tightening up the teaching aspect.  I have no idea what the criteria are that teaching hospitals are judged on (it seems to be on mortality, reputation, etc.), but it would be interesting to see how the show maps on to reality.  (This USNWR ranking seems close to the one discussed in the show, with the same non-imaginary hospitals showing up in sort of the same order as mentioned.  Surgery is not one of the specialties ranked by USNWR, however.)

Second, I was really upset by the work environment effects of McDreamy's break-up with Rose.  For non-viewers, McDreamy (Derek) is supposedly the best neurosurgeon in the world who deluded a surgical nurse into believing he was over his ex, only to seduce the nurse and then go back to his ex in a matter of days.  The nurse, Rose, is understandably upset and makes one or two verbal jabs at him during surgery.  Of course, it's not like anyone else at Seattle Grace ever goes off-topic in the OR, spilling their own guts during surgery, telling their superiors to shut up, or telling off fellow doctors.  These jabs from Rose, however, seem unacceptable to McDreamy (who we are supposed to love, love, love) so he suggests she transfer to another unit.  Her response that he should transfer is laughed off (what, me, superneurosurgeon retool because of a love affair -- preposterous).  Eventually, she transfers to Pediatrics from Surgery.  What?  Is this the acceptable solution?  And we are supposed to admire McDreamy for this?  He has sexual relations with a co-worker, after assuring her over weeks and weeks that he is serious about her, breaks up with her abruptly, and feels like the best solution is for the co-worker to change jobs?  Wow.  I don't like Derek very much now either (or the boneheaded, sexist writers, who just wanted an easy way to get Rose out of the picture).

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June 16, 2008
Deadwood . . .
Posted by Fred Tung

. . . the HBO series, not the unproductive faculty member.  As long as we're on the topic of summer entertainment, I thought I'd put in a plug for this HBO series that has really grabbed my wife and me.  It went 3 seasons through summer '06, and since we don't get HBO, we're just now working our way through the series on DVD.  At first blush, the Wild-West-mining-town milieu seems a really unlikely backdrop for such a great show--terrific characters, sophisticated story line (complete with historical political economy)--and I could easily have passed it over on initial investigation.  Its "sleeper" quality makes this series especially blogworthy.

As you'll see, it's not Kung Fu Panda--definitely not for kids.  Indulgent profanity, graphic violence, frequent nudity and some sex. The show takes place in 1870s South Dakota, in a little mining camp called Deadwood before its annexation to the Dakota Territory.  Pete Dexter wrote a novel about the same town in the 1980s.  Perhaps the town's biggest claim to fame, to the uninitiated, is that Wild Bill Hickok was killed there in 1876.  The movers and shakers of the town include the two men who run its competing brothels and a reluctant sheriff who fled a similar job in Montana to open a hardware store in Deadwood.  If you can get over the gratuitous profanity and graphic violence, it's a great story that is largely based on real people--including not only Wild Bill Hickok, but also Calamity Jane and George Hearst, father of William Randolph Hearst--each trying to make his/her way in this lawless and violent place.  There is love and death, dreams made and shattered.  The rival brothel owners constantly scheme against each other to take over the town while also trying to advance an advantageous annexation of the town to the United States.  The reluctant sheriff is frustratingly principled about law enforcement, reminiscent of Gary Cooper in High Noon.  There is a Chinatown that suffers its own turf wars.  The dialog is very clever, and the characters have exceedingly sophisticated motivations for a TV show.  Perhaps what I enjoy most is that the (or at least my) perception of who are the bad guys changes over the course of the season, a transformation that is generally not easy to pull off.

Practice tips:

1.  See at least the first 2 or 3 episodes before you decide thumbs up or thumbs down.

2.  If you are getting the DVDs one at a time from Netflix or Blockbuster Online, be warned that the last DVD of each season is a "special features" DVD, with no episodes on it.  At least with Blockbuster, the episodes are not separately described on the website, so we have been twice surprised with the special features disk.  At first, we were frustrated because of our dashed expectations about seeing the next episode right away, but we decided to browse through the special features anyway and were pleasantly surprised.  The historical stuff at the end of season 2 is quite interesting.  Most of the main characters actually existed, and the real story of Deadwood is fun after you've watched the series for a bit.

The special features disk at the end of season 2 is really a paean to David Milch, the executive producer.  Despite its self-indulgent quality, I enjoyed seeing how the show was made.

Check it out.

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April 09, 2008
"CBS News, Katie Couric Are Likely to Part Ways"
Posted by Gordon Smith

That's the headline for a story that, but for the fact that I read newspapers, I would have missed completely. Apparently, I am not alone ...


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February 02, 2008
The Writers' Strike Over?
Posted by Gordon Smith

Not quite, but close. According to the NYT, one issue remains unresolved:

A final sticking point had been compensation for ad-supported television programs that are streamed over the Internet after their initial broadcast. Companies were seeking a period during which they could stream such shows without paying a residual, and wanted to peg payments for a year of streaming at the $1,200 level established in the directors' contract. Writers were seeking 1.2 percent of the distributors' revenue from such streams, to ensure they would participate in any revenue gold mine discovered on the Web. How that issue was finally resolved in the informal talks remained unclear.

I am not sure whether streaming is a revenue gold mine, but I know that it has changed my viewing habits. I rarely sit in front of a television, but most evenings, after my children are in bed, I am in front of my home office computer, which is connected to cable television and the internet. This is my time to catch up on the day's email and blog reading, and I sometimes multi-task by playing an old episode of Chuck or Pushing Daisies.

Both shows are out of fresh content. So settle that strike, and give the writers their due.

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