I'm afraid I'm more than a bit head-first into probate administration, and will be for a while, so there may be less variety amongst the sausages for a couple of weeks...
- The end-of-term rush at the Supreme Court is in full swing. No decisions yet on many of the hot-button cases; that said, two decisions handed down on Thursday will have far-reaching impact, and one of them will almost certainly personally affect every American reader of this blawg.
The obvious case of interest to authors concerned, on its surface, free speech... but really was about the government's right to ensure ideological purity. In Agency for Int'l Development v. Alliance for Open Society Int'l, Inc., No. 12–10 (PDF), Congress had imposed a precondition for receipt and use of funds in foreign countries related to AIDS prevention: That recipients must formally and specifically agree that they would not advocate legalization (or any other lessening of legal/social opprobrium) for prostitution. The Alliance wanted to merely remain neutral on the issue, since it did not pretend to understand enough about local conditions everywhere to impose Northwest European/Protestant morality as a blanket rule in a context that is necessarily about the lesser of the evils. (It's notable that there's no corresponding "you cannot receive US government funds for weapons sales — such as police-department subsidies — unless you agree to advocate against nationalization of business interests in foreign nations" imposed on arms dealers and manufacturers, even though that's a far closer substantive relationship.) In a 6–2 decision, Chief Justice Roberts decided for the Court (with very little attempt to hide his disdain) that this violates the Alliance's First Amendment rights. The opinion is worth reading, especially part III.B and the concluding paragraph:
Pressing its argument further, the Government contends that “if organizations awarded federal funds to implement Leadership Act programs could at the same time promote or affirmatively condone prostitution or sex trafficking, whether using public or private funds, it would undermine the government’s program and confuse its message opposing prostitution and sex trafficking.” But the Policy Requirement goes beyond preventing recipients from using private funds in a way that would undermine the federal program. It requires them to pledge allegiance to the Government’s policy of eradicating prostitution. As to that, we cannot improve upon what Justice Jackson wrote for the Court 70 years ago: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Barnette, 319 U. S., at 642.
Slip op. at 14 (record citation omitted). Without ever saying so, this points out that what is at issue here is religious orthodoxy as a test of ideological purity… because that's what Barnette (the Jehovah's Witness flag salute case) is really about. There are legitimate, nonreligious reasons to disapprove of sex trafficking and prostitution; the text of the statute itself denies that those reasons are the only ones in play.
And then there's the big one — and I'm really not exaggerating here — involving a small merchant, an antitrust claim against a financial-industry giant, and the latter's ability to close the courthouse door to the former. In American Express Co. v. Italian Colors Restaurant, No. 12–133 (PDF), a 5–3 majority held that a contract of adhesion that imposes an individual-claim-arbitration-only requirement is enforceable, even as to large public-policy issues like whether the contract itself violates antitrust law. Justice Kagan was in fine form in dissent.
The Court today mistakes what this case is about. To a hammer, everything looks like a nail. And to a Court bent on diminishing the usefulness of Rule 23, everything looks like a class action, ready to be dismantled. So the Court does not consider that Amex’s agreement bars not just class actions, but “other forms of cost-sharing… that could provide effective vindication.” Ante, at 7, n.4. In short, the Court does not consider—and does not decide—Italian Colors’s (and similarly situated litigants’) actual argument about why the effective-vindication rule precludes this agreement’s enforcement.
Slip op. at 27–28. Of course, the real tip-off was Justice Thomas's place in the majority (not to mention his astoundingly wrong concurring opinion). If a matter turns on civil procedure and relates to whether David may confront Goliath in court, one can count on Justice Thomas to side with Goliath… and, when he specifically writes on that matter, to get it wrong by applying a peculiarly blind post hoc approach to what civil procedure, and its context, concerns.
Unfortunately, AmEx is going to come back and bite authors on the butt. Consider, for example, the pending class action against Penguin USA subsidiary Author Solutions, the notorious vanity press division. Given the enthusiasm with which media entities impose arbitration clauses, I would expect many of these to be immediately opposed on that ground. Indeed, for dramatists (both for the stage and the screen), a clause that arguably bars class arbitration is already demanded by every bloody production company out there. The point is not that these cannot be beaten (they can, and I have); it is that they are fundamentally unfair because by barring class actions and even joinder of other parties, one cannot aggregate damages to even load David's slingshot with something other than a blueberry — or, more to the point, aggregate discovery and evidence to demonstrate that fraud actually is fraud through showing a pattern of conduct.
- Speaking of antitrust problems — and without going near the e-book pricing suit — consider this collection of British semi-industry-insider views on the Penguin/Random House trade publishing "merger" (which is really a "sale of a discrete division," not a "merger," both legally and economically). Nowhere does this group of observers confront the critical problem: How will authors whose contracts/business practices are not entirely consistent with the new entity's new policies be treated, especially if the new policies arise from the "other half" of the merger? I'm thinking, specifically, of noncompete clauses; let's just say that the boilerplate noncompete clauses in trade fiction (and trade nonfiction) offered by both US and UK Penguin are inconsistent with those offered by both US and UK Random House and leave it at that, because going into more detail is going to require... the equivalent of a class action. Then, too, there's the problem of customary accounting standards — Penguin's parent is publicly traded, with one set of standards, while Random House's is not — and how that's going to affect things.
- From the Department of Overobvious Blind Spots, consider this somewhat wistful lament for the rom-com. Leave aside all of the noncomparable examples:
One unforeseen upshot of Hollywood’s Franchise Culture is that it’s not minting the kind of actresses who can take up the girl-next-door mantle with convincing ease or instant appeal. Emma Watson and Kristen Stewart both starred in huge franchises (Harry Potter and Twilight, respectively). But neither has the range, approachability or sunny sexiness to successfully pull off the all-American rom-com heroine.
which utterly fails to point out (a) that "all-American rom-com heroine" is racist/sexist/subcultural code for "someone who will eventually be June Cleaver and has no purpose in life other than fulfilling someone else through matrimony"; (b) Ms Hornaday has not carefully watched either of these actresses in their non-franchise roles; and (c) successful rom-coms tend to involve female roles in their late twenties at youngest, and these two young ladies are barely out of their teens. The ultimate failure of perspective here comes from the first paragraph — the comparison to Shakespeare. Maybe — just maybe — rom-coms are no longer working because H'wood is refusing to pay the scriptwriters worth a damn or treat them as human beings... or allow them to really get to know the actors chosen for the Big Roles and thereby tailor their work a bit. If you start with a boring, formulaic script that relies on a generic quirk or three, the probability that you're going to end up with a boring, formulaic film in which the lead was hired for reputation and not for plausibility with those quirks (and no others) is pretty damned high.
All of which, of course, assumes that the rom-com is worth "saving" in the first place. Even with Shakespeare, the distance between the minority of successful scripts and a successful production (let alone a successful film of a production) is greater than the typical lover's leap... and H'wood isn't brimming with Shakespeares, or with producers/directors/actors with sufficient education and/or life experience outside the H'wood fishbowl to do more than emulate Wile E. Coyote chasing the Roadrunner across that gap.