World of JLR

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Tuesday, March 14, 2006

"Big Love" and the Nature of Pilot Episodes

Pilot episodes are always the toughest episodes of any TV series to make. The writers need to establish all the main characters, and give a hint of what is to come not just in future episodes, but also over the arc of the entire series.

No matter how great or "it's not TV, it's HBO" a series is, a pilot episode needs to hit all those points.

The only pilot episode I've ever seen that managed to intelligently and artistically evade that basic pattern was "Lost." The official name of its pilot episode, as is the case with most TV series, was "Pilot," but it used that generic name AND made it fit the actual plot of the pilot episode. The main characters' goal in that episode was to find the pilot of Oceanic Flight 815. And they did. He provided some scary but necessary exposition. And then he got killed by the "monster." (Is it really a "monster"? Recent episodes imply that it is not.)

"Lost" in my opinion is the best series currently airing on television.

I believe "The Sopranos" is a close second.

"Big Love" could reach the level of "Lost" and "The Sopranos." But we need to see how Harry Dean Stanton's character develops before we can say for certain whether it could reach those heights. Otherwise, it'll just be "Desperate Housewives," except all the housewives are married to the same guy.

I'm cautiously optimistic about "Big Love." The pilot was well acted, and the writing showed enough spark to prove that it could be a very good series.

We shall see what happens.

More on "The Sopranos" and the Metaphysics of Television

There is a VC blog thread on "The Sopranos" to which I have posted some thoughts -- here is a link to my latest comment.

Below is an adaptation of my latest VC blog comment.


It is my contention that the absurdity found in "The Sopranos" is in the grand tradition of Beckett and Stoppard, as well as in line with the specific observations about television made by Don DeLillo in White Noise.

DeLillo's White Noise points out how absurd and comical television can be. In White Noise the Gladney family television interjects absurdly off-topic (or surprisingly and comically apt) comments into the family conversations. As Murray Jay Siskind (a character in White Noise) points out, television "practically overflows with sacred formulas." Now Siskind is one of White Noise's least sympathetic characters; he is someone who finds too much meaning in the most meaningless pieces of pop culture detritus.

But just because some are hyperbolic about the significance of pop culture does not mean that there is no metaphysical significance at all to "watching too much television" (the title of a season 4 episode of "The Sopranos").

It is my contention that a theme found in both White Noise and "The Sopranos" is that television is one of many sources of the "white noise" that pervades contemporary American culture.

When this theme is present in narrative art (novels, short stories, film, television, or what-have-you), one may find it unpleasant because of an aesthetic judgment that the theme distracts from characterization (or what-have-you). Or one may find (as I do) that this theme is very effective in elucidating (and sometimes even reshaping) the motivations and psychologies of key characters.

When people watch television, they get ideas.

The theme of the metaphysics of television in modern life is there within "The Sopranos." It is also there when we watch "The Sopranos" ourselves. "The Sopranos" often makes sure to have a television show within a television show, just as Shakespeare often included a play within a play, and just as movies often have a film within a film (cf. various Woody Allen movies and other films).

The theme found in "The Sopranos" regarding the metaphysics of television in contemporary American life also helps to elucidate the general absurdism inherent in the series a la Beckett and Stoppard.

In addition to the epic and tragic elements of "The Sopranos," there is also a distinct thread of absurdism found throughout the series. I personally find this thread of absurdism very appealing.

Television itself often has a direct effect on the psychologies and motivations of the characters in "The Sopranos" (just as television often does in real life for real people). And from an aesthetic standpoint regarding the quality of the series, I find that to be, to quote Martha Stewart, "a good thing."

Monday, March 13, 2006

"The Sopranos" -- Season Premiere from Sun 3/12/06

Last night was the premiere episode of the sixth season of "The Sopranos" on HBO.

It is my contention that one of the factors that makes "The Sopranos" so great is that "The Sopranos" is concerned with the metaphysics of television itself. The series is interested in how both television shows and films replayed on television enter into the houses and comment on the action taking place in people's lives.

Television in "The Sopranos" is like a Greek chorus, continually commenting on the action either through strikingly apt TV shows or films airing on TV that correspond to the action, or through comically absurd comparisons with what is on TV versus what is happening in the plot.

In that sense, "The Sopranos" is very much like Don DeLillo's White Noise, which is in my opinion DeLillo's best novel.

In last night's Season 6 premiere episode of "The Sopranos," Uncle Junior was watching the film Paths of Glory with Kirk Douglas on his television set. That film generally deals with the futility and pointlessness of war (specifically the trenches of WWI).

The scene that was shown right when Tony showed up at Uncle Junior's house was the scene in which Adolphe Menjou's character (General Broulard) castigates Kirk Douglas's character (Colonel Dax). The General says, "You've spoiled the keenness of your mind by wallowing in sentimentality...You are an idealist, and I pity you as I would the village idiot."

The fact that Uncle Junior, who is suffering from dementia, is watching such a movie on television indicates the probable proximate cause for the mindset that led to the surprising event that ended the season premiere.

(I won't say what that event is, in case someone reads the blog post and hasn't seen the episode yet).

To reiterate: It is my contention that one of the factors that makes "The Sopranos" great is comprised of the series's insightful use of, and perspicacious commentary on, the metaphysics of television itself.

Saturday, March 11, 2006

UW Board of Regents Approves New RA "Activities" Policy

Per today's (3/11/06) Milwaukee Journal Sentinel:

"The University of Wisconsin System Board of Regents on Friday unanimously approved a policy that allows resident assistants throughout the system to host Bible study in their dorms."

There are several news releases from the University of Wisconsin Board of Regents that discuss the new policy as affirmed by the UW Board of Regents Education Committee on Thursday, and approved by the full UW Board of Regents on Friday.

(1) , which indicates (down the page under "Education Committee") that the UW Board of Regents Education Committee approved the new RA "activities" policy on Thursday 3/9/06.
(see for a press release dated March 1 from the UW Board of Regents describing the new policy).

(2) , dated Friday 3/10/06, which indicates that "Resident assistants in the UW System have the same rights to lead or participate in activities on campus as other students, under a policy affirmed Friday by the full Board of Regents." (It is the second story from the top of the page.)

The actions taken by the UW Board of Regents this week appear to mark the conclusion of the UW-Eau Claire RA Bible Study controversy that has been discussed thoroughly in the MSM and the blogosphere. It is thanks to elected Wisconsin state and local officials, as well as independent organizations such as FIRE (Foundation for Individual Rights in Education -- link to its discussion of the UW-Eau Claire Bible Study case here), that this issue was resolved in an appropriate and serious fashion.
UPDATE (Sunday 3/12/06): You can also read about the University of Wisconsin System's new RA "Activities" Policy in my comment in the "Volokh Conspiracy" blog's "Sunday Open Thread" by clicking on this link.

Wednesday, March 08, 2006

TMN's The Second Annual Tournament of Books

The Morning News is bringing us The Second Annual Tournament of Books. The Tournament should feature exciting battles among 16 of the best novels of 2005.

You can find the brackets for the Sweet 16 in PDF format by going to .

Here's my Final Four Bracket:

Never Let Me Go (1st seed) vs. Veronica (2nd seed)

The Accidental (2nd seed) vs. On Beauty (1st seed).

The toughest second round match will be between On Beauty (1st seed) and Saturday (2nd seed). I personally liked Zadie Smith's On Beauty better than Ian McEwan's Saturday, but there are some who like Saturday better than On Beauty. Either is a defensible victor, as both are very good novels that are also not either author's individual best of his/her oeuvre. Whichever one wins that second round match will probably go on to beat Ali Smith's The Accidental (another fine novel) in the Final Four and make it to the finals. Although, with Dale Peck as that bracket's Final Four reviewer, it is impossible to predict who will actually make it to the finals.

Also, TMN assigned a 17 year old musician named Nell James to decide who wins the first round battle between Neil Gaiman's Anansi Boys and Ali Smith's The Accidental. Ali Smith should easily win; it's a no-brainer. But Anansi Boys has a specific high-school-age appeal to it that could lead a high schooler to choose it over The Accidental. With a wild-card judge such as a high-school-age musician deciding, who knows what will happen. But I do know that The Accidental is a great novel that should be in the Final Four.

The toughest Final Four matchup will be Never Let Me Go vs. Veronica (assuming of course those two make it, which they should). I'd definitely go with Kazuo Ishiguro's Never Let Me Go, but Veronica is Mary Gaitskill's best novel of her career and could easily pull off the upset. Whoever wins that matchup will, in my opinion, be the champion.

Of course, it's all driven by individual judges up until the finals. So there could be upsets galore.

Let the REAL March Madness begin!

Monday, March 06, 2006

Rumsfeld v. FAIR -- Chief Justice Roberts Shows His Elegant Brilliance

In today's unanimous ruling in Rumsfeld v. FAIR, ( click here for link ), Chief Justice John Roberts silently and elegantly corrected a major discrepancy in free speech jurisprudence.

Justice Brennan in Texas v. Johnson, 491 US 397 (1989), found the flag burning case at issue to be "outside of" the O'Brien four-prong test was because Texas's interest in banning flag burning was unrelated to the interest in suppressing free expression.

The third prong of O'Brien explicitly states that a given piece of legislation is constitutional "if the governmental interest is unrelated to the suppression of free _expression." U.S. v. O'Brien, 391 US 367, at 377. The Texas v. Johnson ruling by Justice Brennan thus materially misrepresents the four-prong test set forth in the majority opinion in O'Brien by Chief Justice Warren.

The third prong of the O'Brien test cannot also be "outside of" the O'Brien test.

It is my belief that Chief Justice Roberts has silently and brilliantly corrected one of the Supreme Court's most glaring jurisprudential goofs: The O'Brien test has been made whole once again.

In his interesting same-day reaction to the Rumsfeld v. FAIR decision (posted on the Volokh Conspiracy blog here -- click on this link), Dale Carpenter well-meaningly but, in my opinion, mistakenly believes that Chief Justice Roberts himself made a doctrinal error. On the contrary. Chief Justice Roberts has silently and brilliantly corrected an error in the expressive conduct jurisprudence. Chief Justice Roberts has essentially given a silent nod to Chief Justice Warren's original O'Brien test by saving it from Justice Brennan's jurisprudential mistake.

Already into his first term as Chief Justice, John Roberts has elegantly cleaned and clarified a major dissonance found in the realm of expressive conduct jurisprudence. It is definitely a sign of many good things to come from our nation's new Chief Justice.

Thursday, January 19, 2006

Judge Alito as an Oakeshottian

On the Volokh Conspiracy blog, Orin Kerr has asked the question How conservative is Sam Alito?

My answer to the question is that Judge Alito will jurisprudentially be most similar to Chief Justice Rehnquist. As has been written about in the media, Chief Justice Rehnquist began a thesis on conservative political theorist Michael Oakeshott while at Harvard; Oakeshott emphasized the centrality of tradition for stability and continuity in politics and society. Oakeshott is very Burkean in that respect. Here is a link to the Michael Oakeshott Association.

Chief Justice Rehnquist's jurisprudence seems to have soaked up a lot of Oakeshottian political theory. His dissents on the conservative side always seemed to be very dispassionate -- arguing for what politically can be deemed the "conservative" side, but always from a position of minimalism, not extremism. When it was prudent to maintain stare decisis, Chief Justice Rehnquist's majority opinions in the Dickerson case (upholding Miranda) and the Hibbs case (upholding the Family and Medical Leave Act in the face of an 11th Amendment challenge from Nevada) reflect these values. I believe Judge Alito will also share these Oakeshottian values.

The First Amendment, News Gathering, and UCLAProfs

There is a very interesting hypothetical case regarding freedom the press posed by Eugene Volokh on the Volokh Conspiracy blog today ( link here ). At that post you will find the detailed and interesting hypothetical regarding the statute California Education 66450, which leaves open those who impermissibly distribute UCal lectures. for profit. I have provided some lengthy comments on the Volokh blog comments line, but let me write out a summary (which is still lengthy) of what I have written.

[Update: I just want to clarify that it appears that the reason for Professor Volokh's presenting the hypothetical case was because of the web site's activities -- see Eugene Volokh's postings on the subject at this link and elsewhere on the VC blog.]
The hypothetical case Professor Volokh has presented is a difficult one, and poses a novel set of facts that would potentially call for new doctrine. The Supreme Court precedent that is most on point is Cohen v. Cowles Media Co , 501 US 663 (1991) [ see link here ] a case dealing with the legal question of whether the First Amendment prevents the recovery of damages from a newspaper that result from that newspaper’s breach of a promise of confidentiality to a source (under the state’s generally applicable promissory estoppel law).

There were two lines of precedents that the Court could choose from. The first line of precedents was the Smith v. Daily Mail and Florida Star line, which holds that "if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order" (Smith v. Daily Mail Publishing Co, 443 US 97, 103 [1979]) .

The second line of precedents includes Branzburg v. Hayes, 408 US 665 (1972) and Associated Press v. NLRB, 301 US 103 (1937); this line of decisions holds that, in the words of Justice White in the Cohen decision, “generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.” Cohen at 669.

Justice White believed that the facts of the case before the Court led them to the second line of precedents – a generally applicable law that calls for civil damages. Notice that Justice White’s language includes the infinitive “to gather.” This decision clearly has at least some implications for the act of newsgathering.

Now: in terms of potential new doctrine:

It seems to that Justice White’s formulation in Cohen v. Cowles (i.e., incidental effects produced by generally applicable laws) could stand on its own, or be even more formalized into something akin to the O’Brien four-prong test that applies to symbolic speech. Such “intermediate scrutiny” as found in O’Brien however has notable opponents, including Justice Scalia in his Barnes v. Glen Theatre concurrence. Such fuzzy balancing tests raise fundamental questions about the nature of judicial review that are worthy to explore
If the Cohen v. Cowles decision does in fact apply (which I believe it does), the question is, was California Education Statute 66450 enforced in such a way as to produce “incidental effects on [the press’s] ability to gather and report the news”? Nunzio in his insightful post raises the point that the news reporters could simply interview students about what was said; therefore the statute holds up in this particular case.. But perhaps the editors believe they need concrete proof along the lines of an audiotape before they feel comfortable publishing the story. Would this in essence be putting the Supreme Court as final arbiter of what is sourced well enough to be published? Moreover, what if the editors published the story with their “paid researchers” as anonymous sources, and UC-Davis in their civil suit demands that The Davis Enterprise disclose the names of these anonymous sources? To what extent would the sources as agents of the newspaper be protected under the 1st Amendment if Florida Star were to be controlling? The recent dust-up over Judith Miller would seem to imply that UC-Davis might win out on a purely textual basis alone.

But then we get to what is the bane for some federal judges’ existence, and for other judges, the linchpin of their decision-making: legislative history and intent. What was the legislative history behind California Education Statute 66450? Some judges may dispose of the matter simply by looking at the legislative history and deciding that matters such as investigative reporting were not envisioned to be covered by the statute, even though it is written in a generally applicable way. The legislative history and intent is therefore an important variable to account for.

But the plain language of the statute combined with Justice White’s phraseology in Cohen v. Cowles would seem to lead to a ruling for UC-Davis, with California Education Statute 66450 being ruled constitutional in this hypothetical case.

In terms of potential new doctrine:

I suppose that Justice White’s holding in Cowles could be, in this hypothetical case, formalized as an O’Brien “intermediate scrutiny” test (cf. United States v. O'Brien , 391 U.S. 367 (1968) [ see link here see link here and Barnes v. Glen Theatre, 501 US 560 (see link here ). The O’Brien four part test is as follows:

1) if it is within the constitutional power of the government;
2) if it furthers an important or substantial governmental interest;
3) if the governmental interest is unrelated to the suppression of free expression; AND
4) if the incidental restriction on 1st Amendment freedoms is no greater than is essential to the furtherance of the governmental interest.

“Intermediate scrutiny” is a notably fuzzy balancing test that has some, including Justice Scalia on record in Barnes, as being opposed to. For example, with prong #2, the ways in which “important or substantial” is different from “compelling” are difficult to discern. Furthermore, and more importantly the O’Brien test applies to symbolic speech, and this is most certainly NOT symbolic speech. It would be hard to posit a rational basis test for this case though – there is no morals rationale as there was in Barnes (the nude dancing case), given the public interest involved in this hypothetical news story. But I’d say that something along the lines of an O’Brien test would work here, and is more or less what is in place with Justice White’s statement that “generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.”

Therefore, this generally applicable California Education Statute, in my view, only appears to have incidental effects on the press’s ability to gather and report the news. Of course, it isn’t clear how courts are able to determine what is or is not an “incidental effect on [the press’s] ability to gather and report the news.” These kinds of balancing tests raise problems through the realm of judicial review, and thus make for very difficult cases.

Wednesday, January 18, 2006

The Blog Wrap -- 1-18-06

Here is "The Blog Wrap" -- some blog posts of particular note that I have been reading. In the comments sections of these posts, you will find remarks from yours truly.

Ann Althouse on the Ayotte ruling handed down today by the US Supreme Court regarding New Hampshire's abortion law.

Eugene Volokh on the usefulness of amicus curiae briefs before the US Supreme Court.

Orin Kerr on oral arguments in United States v. Grubbs, a 4th Amendment case before the US Supreme Court.

Stephen Bainbridge on the US Supreme Court's ruling in Gonzales v. Oregon, the case dealing with Oregon's assisted suicide law.

Stephen Bainbridge on why it was crucial that conservatives fought (and won) the battle over Harriet Miers.

Althouse, Volokh Conspiracy, and ProfessorBainbridge are three excellent law blogs (or blawgs, if you prefer) that are definitely worth regular reading. Enjoy!